JOINT DISSENTING OPINION OF JUDGES DE GAETANO, YUDKIVSKA AND GROZEV

1. We respectfully disagree with our colleagues that Article 8 of the Convention was not violated in the present case. We would share the position of our colleagues in the Chamber who found that in the light of the existing domestic legislation, the domestic courts had failed to strike a fair balance between the applicants’ right to respect for their private life under Article 8 of the Convention and their employer’s interest in the protection of its property rights.

2. This case demonstrates the growing influence and control that technology has in our world, and more particularly, the collection and use of our personal data in our everyday activities. As a living instrument, the Convention, and therefore the Court, not only needs to recognise the influence of modern technologies, but also has to develop more adequate legal safeguards to secure respect for the private life of individuals.

3. The widespread use of personal data in modern times was, eight years ago, already an area in which the Court expressed the need for “increased vigilance”, when it heard the quite similar case of Köpke v. Germany ((dec.), no. 420/07, 5 October 2010). Since then, surveillance technologies and the data collected using them have been significantly developed. These new technologies allow the data stored to be viewed by anyone, in any place, at any given time, with little control and not much trace, thus calling into question the majority’s finding in the present case that “only the supermarket manager, the company’s legal representative and the union representative viewed the recordings obtained through the impugned video-surveillance” (paragraph 126).

4. In other words, new technologies have dramatically changed the ease with which video-surveillance can both be carried out and transmitted, thus multiplying significantly the potential infringement of privacy rights under Article 8 of the Convention. It is precisely for this reason that there is a need, at national level, for the legislative framework to be clear and foreseeable in relation to cases concerning electronic surveillance. This becomes crucial in cases such as the present one, where an employer uses covert video-surveillance in the workplace. Thus, our disagreement of principle with the majority stems from their endorsement of a legal response to the particular issue which was only developed after the facts and in relation to a specific case. While such an approach, where domestic courts are given leeway to develop a legal response to a conflict which has given rise to a specific case regarding competing Convention rights, might be appropriate in some cases, we consider it to be ill-suited to cases regarding electronic surveillance. This is precisely due to the technological ease with which electronic surveillance can be carried out and disseminated and the potentially vast and significant negative effects it could have on individuals’ privacy rights. Therefore a clear and foreseeable legal framework, with appropriate and effective safeguards, becomes of paramount importance. In the case at hand, the existing legal framework provided for only one specific guarantee, namely the need for employees to be given prior warning of the installation and use of surveillance, and it did not allow of any exceptions to that guarantee. This point, in our view, is decisive for an effective legal analysis and the finding in the present case.

5. Moreover, the legal framework is of particular importance in the context of employment relationships, where the employer has significant powers with regard to employees and any abuse of those powers should be avoided. Information on the implementation of surveillance measures is essential for the persons concerned to be able to assert the totality of the rights that they are guaranteed, such as the rights of access, of rectification or of deletion in respect of the personal data collected.

6. The failure of the national courts to strike a fair balance between the parties’ competing rights is most apparent when analysing the domestic legislation. In the case of S. and Marper v. United Kingdom ([GC], nos. 30562/04 and 30566/04, ECHR 2008), the Court concluded that “detailed rules governing the scope and application of measures” were needed to provide sufficient guarantees against the risk of abuse and arbitrariness. Thus, in the Court’s view, “the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8”. Although the legislation which governs personal data has created a social norm where there is recognition that individuals can control the dissemination of their image, this right was not granted to the applicants in this case. This was in direct contradiction with the Spanish national law under section 5 of the Data Protection Act. If the current regulatory framework is to be enforced, then prior notice must be given to individuals whose image is going to be collected and used. Regrettably, no such opportunity was given to all the employees as they were not made aware beforehand of the covert video-surveillance.

7. The majority agree that Spanish law requires that “it is necessary to inform the individuals concerned, clearly and prior to implementation, of the existence and conditions of such data collection”, thus limiting the invasion of privacy and giving employees the opportunity to regulate their conduct. This requirement was clearly not met in the present case. However, the majority went on to hold that this was “just one of the criteria to be taken into account in order to assess the proportionality of a measure” (paragraph 131). It is true that the Court’s clear structure in assessing any interference (requirement of lawfulness preceding assessment of proportionality) does not apply in the present case as we are talking about positive obligations and not interference; we nevertheless find it problematic that the domestic courts failed to examine whether the applicants had been informed of the installation of the covert video-surveillance. The Employment Tribunal, when judging the proportionality of the measure, did not expressly address the applicants’ argument that they had not been informed of the monitoring specifically and prior to its implementation, as required by domestic law. Instead, it merely referred to Judgment no. 186/2000 of the Constitutional Court, which had taken the view that the question of the information given by the employer to the employees and to the staff committee was a question of ordinary legality and was not pertinent in terms of the constitutional right to respect for private life. Thus, the national courts failed to enforce the legal framework which ensures data protection or to take into account the applicants’ case in a detailed and individual manner.

8. We also find unsatisfactory the assessment made by the domestic courts when determining whether the covert video-surveillance had been necessary. The Tribunal confirmed that it was a necessary measure for the legitimate aim pursued, to discover who had committed thefts in the supermarket. However, the Tribunal failed to consider whether a less restrictive measure could have been used by the employer to pursue the same aim. This failure takes on particular importance in the light of the majority’s finding that the question whether it would have been possible “to set up a monitoring system based on less intrusive methods and measures” is an important factor to be assessed in order to ensure the proportionality of covert video-surveillance measures in the workplace (paragraph 116).

9. The national courts had to consider which alternative measures could have been used by the employer to pursue its legitimate aim – measures which would simultaneously have had a less invasive impact on the employees’ right to respect for their private life. The employer had two legitimate aims: firstly, it wanted to stop further theft, for which purpose a warning about the installed video-surveillance system would have been sufficient. Secondly, it wanted to find out who was responsible for the losses it had sustained over the past months; here, prior notice of the visible and covert video-surveillance would not have proven useful. Nevertheless, since the theft committed was a criminal offence, the employer could have, and should have, gone to the police prior to taking such measures on its own initiative. The need to elucidate an offence does not justify private investigation, including in the form of covert video-surveillance, which amounts to an excessively intrusive measure and an abuse of power. By not condemning such behaviour committed by private parties, the Court is encouraging individuals to take legal matters into their own hands. Instead, it is for the competent authorities to take the appropriate measures as they are better equipped, in terms both of their powers to implement certain measures and of their responsibility and obligations to follow guidance on what is necessary in a situation like the present one.

10. The majority point out that they “cannot accept the proposition that ... the slightest suspicion of misappropriation or any other wrongdoing on the part of employees might justify the installation of covert video-surveillance by the employer”, but nevertheless find that “the existence of reasonable suspicion that serious misconduct has been committed ... may appear to constitute weighty justification” for such a measure (paragraph 134). In our view, in the absence of a requirement of clear procedural safeguards, the existence of “reasonable suspicion of serious misconduct” is not sufficient as it may result in private investigations and might be used as justification in an unacceptably large number of cases. While, in principle, the requirement of “reasonable suspicion” is an important safeguard, it is not sufficient to protect privacy rights when faced with electronic surveillance of a covert nature. Under circumstances such as those in the present case, where an employer uses covert video-surveillance without giving prior warning to its employees, there is a need for additional procedural safeguards; similar to those required under the Convention in the use of secret surveillance in criminal proceedings. Procedural requirements allowing for a reliable verification, by a third party, of the existence of a “reasonable suspicion of serious misconduct”, and guarantees against the justification for the surveillance being given “after the fact”, should be a requirement under Article 8 of the Convention. It is only with the implementation of these procedural safeguards that we could readily accept the majority’s judgment.

11. Furthermore, unlike the Chamber, the Grand Chamber failed to differentiate the present case from that of Köpke (cited above). In that decision only two employees had been suspected of committing theft in the company, while in the present case all the employees had been subject to the covert video-surveillance installed behind the tills of the supermarket. This unlimited surveillance is much more significant and should thus have been given additional weight by the national courts and by this Court; especially as the surveillance lasted for the entire working day and the cameras were positioned in such a manner that the applicants, in their work as cashiers, could not have avoided being filmed. Such an extensive collection of personal data in respect of all the applicants should have adequately been recognised when determining the proportionality of the measure used by the employer.

12. As this case concerns private employers, in our view the Court had to confirm, extend, and transpose the Bărbulescu principles, as set out in paragraph 121, in respect of covert video-surveillance cases such as the present one. Although that case was not specific to covert video-surveillance, it established an important principle regarding the extent of control that can be exercised by an employer upon its employees, as well as a multitude of factors that the national courts have to consider in order to strike a fair balance between the competing interests of the parties.

13. Another factor which was undermined in the majority’s assessment was “the consequences of the monitoring for the employee subjected to it”. In the case of Vukota-Bojić v Switzerland (no. 61838/10, 18 October 2016), where the Court found a violation of Article 8 of the Convention, the applicant had been identified through the use of covert video-surveillance, which had ultimately led to a reassessment of her insurance benefits. In the present case, the majority found that although the applicants had been dismissed following the use of covert video-surveillance, “the recordings were not used by the employer for any purposes other than to trace those responsible for the recorded losses of goods and to take disciplinary measures against them” (paragraph 127). In our view, although not used for any other purpose, the consequence of collecting and using this personal data should not have been underestimated, especially given the wide array of possibilities that potential modern technologies provide.

14. Similar criteria, of importance for an assessment of proportionality in relation to covert video-surveillance, have been developed in other jurisdictions. For example, in the case of R v. Oakes ([1986] 1 S.C.R. 103) the Canadian Supreme Court considered the following factors: whether the measure is necessary to meet a specific need; whether it is effective in meeting that need; and whether the loss is proportionate to the benefit. This is an appropriate approach to follow in order to determine whether there has been a fair balance between competing Convention rights. Also of note is the same court’s finding in Ross v. Rosedale Transport Ltd ([2003] C.L.A.D. No. 237) that “surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it”.

15. In sum, we find that both the national courts and this Court failed to strike a fair balance between the rights of the employer and the rights of the employees. By finding no violation of Article 8 of the Convention, the Court has decided to allow the unlimited use of covert video-surveillance in the workplace without affording sufficient legal safeguards to those whose personal data will be collected and used for purposes unknown to them. With the growing influence that technology has on our society, we cannot afford to let individuals take justice into their own hands and allow the right to a private life under Article 8 of the Convention to remain insufficiently protected when faced with such new challenges.