JOINT DISSENTING OPINION OF JUDGE SPANO, BIANKU AND KJØLBRO

1. In the majority’s view, the contested video monitoring of the university auditoriums where the applicants were teaching as professors, related to and interfered with the applicants’ private life as protected by Article 8 of the Convention (see paragraphs 44-45 and 56 of the judgment). As we respectfully disagree, we voted against declaring the application admissible and finding a violation of Article 8 of the Convention.

2. In our view, and as explained below, the judgment expands the scope of Article 8 § 1 of the Convention and may have significant implications.

3. The Court has decided a number of cases concerning monitoring in public places, including video surveillance , and it transpires from case-law that such monitoring does not automatically raise an issue under Article 8 § 1 of the Convention.

4. In this context, the Court has stated that “private life” is inapplicable to places which are freely accessible to the public and which are used for activities which do not relate to the private sphere of the participants (see Steel and Morris v. the United Kingdom (dec.), no. 68416/01, 22 October 2002). Furthermore, the normal use of security cameras, whether in public streets or on premises, such as shopping centres or police stations, do not as such raise issues under Article 8 § 1 of the Convention (see Peck v. the United Kingdom , no. 44647/98, § 59, ECHR 2003 ‑ I, and Perry v. the United Kingdom , no. 63737/00, §§ 38 and 40, ECHR 2003 ‑ IX (extracts)). That having been said, recording and systematic or permanent storing of such data may interfere with private life, even if the monitoring has taken place at a public place (see Peck , cited above, § 59, and Perry , cited above, § 38). Likewise, covert and systematic surveillance of a person in public places, including by means of video, and storing and subsequent use of the data obtained may interfere with private life (see Perry , cited above, §§ 39-43, and Vukota-Bojić v. Switzerland , no. 61838/10, § 52-59, 18 October 2016). Likewise, disclosure of recordings from surveillance cameras in public places may interfere with private life (see Peck , cited above, §§ 60-63). Likewise, permanent video surveillance of a person may interfere with private life (see Van der Graaf v. the Netherlands (dec.), no. 8704/03, 1 June 2004).

5. The Court has also decided a number of cases concerning monitoring at workplaces, including video surveillance , and it transpires from this case ‑ law that an employer’s surveillance of employees at the workplace does not automatically raise an issue under Article 8 § 1 of the Convention.

6. In this context, the Court has found that an employer’s interception of an employee’s phone calls from the workplace fell within the scope of the notion of “private life” in situations where the employee had a reasonable expectation of privacy for such calls (see Halford v. the United Kingdom , 25 June 1997, §§ 44-46, Reports of Judgments and Decisions 1997 ‑ III). This applies not only to an employee’s phone calls but also to e-mails and internet usage (see Copland v. the United Kingdom , no. 62617/00, §§ 41-42, ECHR 2007 ‑ I). The Court has stated that an employee’s reasonable expectations as to privacy is a significant though not necessarily conclusive factor (see Köpke v. Germany (dec.), no. 420/07, 5 October 2010, Bărbulescu v. Romania [GC], no. 61496/08, § 74, ECHR 2017). The Court has found that the video recording of an employee’s conduct at her workplace without prior notice, the processing and examination by several persons of the material obtained, and the subsequent use in public court proceedings of such material raised an issue under the employee’s “private life” (see Köpke , cited above). Likewise, the Court has found that an employer’s monitoring of an employee’s use of internet and access to private messages sent by means of an instant messaging service (Yahoo Messenger) raised an issue under the applicant’s “private life” (see Barbulescu , cited above, §§ 74-81).

7. Under the Court’s case-law concerning monitoring, it is, in principle, necessary to make a distinction between video monitoring as such and the recording, processing and use of the data obtained on the other side, both situations being able to give rise to private-life considerations (see Köpke , cited above, Peck , cited above, §§ 58-59, Perry , cited above, §§ 38 and 40 ‑ 41).

8. From the Court’s existing case-law we deduce the following: video monitoring or surveillance does not in itself amount to an interference with the private lives of the persons monitored. Whether that is the case depends on an assessment of the specific circumstances of the case, including where the monitoring takes place, the nature of the activities monitored, whether the monitoring is targeted and systematic, whether the persons monitored had a reasonable expectation of privacy, whether notice had been given or whether the person irrespective of such notice had a reasonable expectation of privacy having regard to the nature of the activities, whether the information is stored, processed and made use of, including whether it is disseminated. In other words, it depends on an assessment of the video monitoring as such as well as the storing, processing and use of the data or information gathered.

9. In assessing the applicability of the “private life” aspect of Article 8 § 1 of the Convention, the majority focuses on the video surveillance as such (see paragraph 44-45 and 56 of the judgment), and not on any recording or subsequent use of the information gathered. For the majority, it suffices to evoke Article 8, on the basis that the video surveillance or monitoring took place in the workplace of the applicants, the auditorium where they as professors were teaching and interacting with students. In our view, this is a very extensive and broad understanding of the “private life” notion.

10. In our view, having regard to the specific circumstances of the present case, the university’s video monitoring in the auditorium where the applicants were teaching as professors did not raise an issue as regards the applicants’ private life, and in this context we agree with the assessment of the domestic courts. We find it conclusive that the video monitoring took place at the university auditoriums, that the applicants had been notified of the video surveillance, that what was monitored was the applicants’ professional activity, that the surveillance was remote, that there was no audio recording and thus no recording of the teaching or discussions, that the pictures were blurred and the persons could not easily be recognised, that the video recordings were only accessible to the dean and were automatically deleted after 30 days, and that the data or information was not subsequently used.

11. As mentioned above, the majority only relies on the video monitoring as such, and not on the recording, processing or possible use of the data gathered. Be that as it may, we would like to add that in our view the storing of the video surveillance did not in itself raise an issue under “private life”. Even though it may be argued that a video filmed concerns data about identified or identifiable persons (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 133, ECHR 2017 (extracts)), the applicants have not argued in this case that the quality of the video was such that it would lead to their identification, thus raising an issue under the applicants’ private life as protected by Article 8 § 1 of the Convention, nor that any data was or could be used in such a way that the “private life” aspect of Article 8 § 1 of the Convention came into play (see a contrario S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 60-61 and 67, ECHR 2008).

12. In sum, we respectfully dissent from the majority’s findings that the video monitoring, as such, brought the applicant’s complaint within the scope of Article 8 § 1 of the Convention and constituted an interference with their privacy rights. We emphasise that the applicants are university teachers who were giving lectures in a university amphitheater, thus fully engaged in a professional activity in a quasi-public setting, and not, for example, in their offices. Having been notified of the video surveillance in the amphitheatres, their reasonable expectation of privacy in that particular context, if any, was very limited. In conclusion, the mere fact of the amphitheaters being monitored cannot in our view engage Article 8 § 1 of the Convention without further elements being demonstrated, as we have explained above. By expanding the scope of Article 8 § 1 to include the facts of the present case, the majority have overly broadened the notion of “private life” under that provision, to an extent which lacks a basis in the Court’s case-law and is not sufficiently supported by cogent legal arguments.