Information Note on the Court’s case-law 134

October 2010

Köpke v. Germany (dec.) - 420/07

Decision 5.10.2010 [Section V]

Article 8

Positive obligations

Article 8-1

Respect for private life

Video surveillance of supermarket cashier suspected of theft: inadmissible

Facts – The applicant, a supermarket cashier, was dismissed without notice for theft, following a covert video surveillance operation carried out by her employer with the help of a private detective agency. She unsuccessfully challenged her dismissal before the labour courts. Her constitutional complaint was likewise dismissed.

Law – Article 8: A video recording of the applicant’s conduct at her workplace had been made without prior notice on the instruction of her employer. The images thereby obtained had been processed and examined by several fellow employees and used in the public proceedings before the labour courts. The applicant’s “private life” within the meaning of Article 8 § 1 had therefore been concerned by these measures. The Court had to examine whether the State, in the context of its positive obligations under Article 8, had struck a fair balance between the applicant’s right to respect for her private life and both her employer’s interest in the protection of its property rights, guaranteed by Article 1 of Protocol No. 1, and the public interest in the proper administration of justice.

At the relevant time, the conditions under which an employer could resort to the video surveillance of an employee in order to investigate a criminal offence the employee was suspected of having committed in the course of his or her work had not yet been laid down in statute law. However, the Federal Labour Court had developed in its case-law important safeguards against arbitrary interference with the employee’s right to privacy. This case-law had been applied by the domestic courts in the applicant’s case. Moreover, covert video surveillance at the workplace following substantiated suspicions of theft did not affect a person’s private life to such an extent as to require a State to set up a legislative framework in order to comply with its positive obligations under Article 8. As noted by the German courts, the video surveillance of the applicant had only been carried out after losses had been detected during stocktaking and irregularities discovered in the accounts of the department where she worked, raising an arguable suspicion of theft committed by the applicant and another employee, who were the only employees to have been targeted by the surveillance measure. The measure had been limited in time (two weeks) and had only covered the area surrounding the cash desk and accessible to the public. The visual data obtained had been processed by a limited number of persons working for the detective agency and by staff members of the employer. They had been used only in connection with the termination of her employment and the proceedings before the labour courts. The interference with the applicant’s private life had thus been restricted to what had been necessary to achieve the aims pursued by the video surveillance. The domestic courts had further considered that the employer’s interest in the protection of its property rights could only be effectively safeguarded by collecting evidence in order to prove the applicant’s criminal conduct in the court proceedings. This had also served the public interest in the proper administration of justice. Furthermore, the covert video surveillance of the applicant had served to clear from suspicion other employees. Moreover, there had not been any other equally effective means to protect the employer’s property rights which would have interfered to a lesser extent with the applicant’s right to respect for her private life. The stocktaking could not clearly link the losses discovered to a particular employee. Surveillance by superiors or colleagues or open video surveillance did not have the same prospects of success in discovering a covert theft.

In sum, there was nothing to indicate that the domestic authorities had failed to strike a fair balance, within their margin of appreciation, between the applicant’s right to respect for her private life and both her employer’s interest in the protection of its property rights and the public interest in the proper administration of justice. However, the balance struck between the interests at issue by the domestic authorities did not appear to be the only possible way for them to comply with their obligations under the Convention. The competing interests concerned might well be given a different weight in the future, having regard to the extent to which intrusions into private life were made possible by new, more sophisticated technologies.

Conclusion : inadmissible (manifestly-ill-founded).

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

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