Information Note on the Court’s case-law 200

October 2016

Vukota-Bojić v. Switzerland - 61838/10

Judgment 18.10.2016 [Section III]

Article 8

Article 8-1

Respect for private life

Unlawful surveillance of activities of social-insurance claimant by private investigators: violation

Facts – The applicant was injured in a road accident. The accident gave rise to various disputes with her insurance company, and lengthy proceedings, about her capacity to work, the causal link between the alleged extent of her disability and the accident and the amount of benefit to which she was entitled. The applicant underwent a number of medical assessments and following her refusal to undergo a further medical assessment, the insurance company, acting within the framework of powers conferred on it under the State insurance scheme, decided to place her under surveillance. Private investigators commissioned by the insurance company monitored her movements on four different dates over a twenty-three day period. The insurance company sought to rely on the detailed surveillance reports in court proceedings in order to contest the level of disability alleged by the applicant and the accuracy of the medical reports that she relied on. The applicant complained that the secret surveillance of her daily activities ordered by her insurance company had violated her rights under Article 8 of the Convention. In particular, she alleged a lack of clarity and precision in the domestic legal provisions that had served as the legal basis of her surveillance.

Law – Article 8: The surveillance measure complained of had been ordered by a private insurance company. However, that company had been given the right by the State to provide benefits arising from compulsory medical insurance and to collect insurance premiums. A State could not absolve itself from responsibility under the Convention by delegating its obligations to private bodies or individuals. Given that the insurance company was operating the State insurance scheme and that it was regarded by the domestic regime as a public authority, the company had to be regarded as a public authority and acts committed by it had to be imputable to the respondent State.

As to whether there had been an interference with the applicant’s right to respect for private life, the Court observed that she was systematically and intentionally watched and filmed by professionals acting on the instructions of her insurance company on four different dates over a period of twenty-three days. The material obtained was stored and selected and the captured images were used as a basis for an expert opinion and, ultimately, for a reassessment of her insurance benefits. The Court was satisfied that the permanent nature of the footage and its further use in an insurance dispute could be regarded as processing or collecting of personal data about the applicant disclosing an interference with her private life.

The issue before the Court was whether the provisions of domestic law which served as legal basis for ordering the applicant’s surveillance had been sufficiently clear and detailed for the interference to be ”in accordance with the law”. In that connection, the Court observed that, although the relevant provisions of domestic law did not seem to either expressly include or even imply the recording of images or videos among the investigative measures that could be deployed by insurance companies, the Swiss Federal Court concluded that the provisions covered surveillance in circumstances similar to the applicant’s case. In examining whether domestic law contained adequate and effective guarantees against abuse, the Court observed that it did not indicate any procedures to be followed for the authorisation or supervision of the implementation of secret surveillance measures in the specific context of insurance disputes. In addition, the relevant legal provisions remained silent on the procedures to be followed for storing, accessing, examining, using, communicating or destroying the data collected through secret measures of surveillance. It thus remained unclear where and how long the report containing the footage and photographs of the applicant would remain stored, who would have access to it and whether the applicant had any legal means of contesting the handling of the report. The Court accepted that the surveillance in the case had to be considered to interfere less with a person’s private life than, for instance, telephone tapping; it nonetheless had to adhere to general principles on adequate protection against arbitrary interference with Article 8 rights.

For those reasons – and notwithstanding the arguably minor interference with the applicant’s Article 8 rights – the Court did not consider that the domestic law had indicated with sufficient clarity the scope and manner of exercise of the discretion conferred on insurance companies acting as public authorities in insurance disputes to conduct secret surveillance of insured persons. In particular, it did not set out sufficient safeguards against abuse. The interference with the applicant’s rights under Article 8 had, therefore, not been in accordance with the law.

Conclusion : violation (six votes to one).

The Court also held, unanimously, that the use in the applicant’s proceedings of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

Article 41: EUR 8,000 in respect of non-pecuniary damage.

(See also De La Flor Cabrera v. Spain , 10764/09 , 27 May 2014; and Uzun v. Germany , 35623/05, 2 September 2010, Information Note 133

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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