With the recent decision issued by the European Court of Human Rights on January 9, 2018 in López Ribalda and others v. Spain, a momentous turn is made to the doctrine that had been marked by the Constitutional Court in Spain, once more leaving the door open to the possibilities of weighting between the exercise of disciplinary authority and the protection of workers’ right to privacy.
This decision is based on the following facts: the businessman of a major Spanish supermarket chain was informed of the existence of certain irregularities that occurred during several consecutive months which resulted in significant economic losses for the company. In order to investigate and put an end to these economic losses, the businessman decided to install both visible and hidden video surveillance cameras. The company had previously informed the workers of the installation of the visible cameras but did not communicate the installation of the hidden cameras. Several workers were subsequently dismissed for disciplinary reasons, as they had been caught, via the video recordings, stealing and helping other colleagues and customers. The workers objected to the use of covert video surveillance and claimed that their right to privacy had been violated (Article 18 C.E).
To start, the Labour Court declared that the use of covert video surveillance in the workplace, without prior communication to workers, was protected by the powers of organisation and control of art. 20 of the Workers’ Statute (E.T.). This article allows the employer to take the appropriate measures in order to verify compliance with the employment relationship.
The plaintiffs then went to the European Court of Human Rights in Strasbourg (hereinafter, ECHR). They alleged that the covert surveillance ordered by the employer, as well as the recording and use of the obtained data, violated their right to privacy under the provisions of art. 8 of the European Convention on Human Rights.
ECHR’s decision, moving away from the criterion maintained by the national courts, declares that the recordings made by the employer imply a violation of the workers’ right to privacy. The ECHR has come to demand that the installation of fixed video surveillance cameras must categorically comply with:
- The obligation of prior information stipulated in the Organic Law on Data Protection (LOPD) and in Instruction 1/2006 of the Spanish Agency for Data Protection, and
- The obligation of identifying the zone under video surveillance.
It is clear that the decision of the European Court of Human Rights marks a before and after in terms of the application of video surveillance measures. The Court requires that, as of this moment, a reinforced proportionality exercise must be carried out, where the need and suitability of the measure in question will be scrutinized in greater detail. Undoubtedly, in Spain, this decision signifies a change with respect to the jurisprudential line that the courts had been marking regarding the weighting of fundamental rights and disciplinary power. This all, therefore, begins to generate contradictory judgments.
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