The use of hidden cameras in the workplace is in principle not permitted. Recently, the European Court of Human Rights ("ECHR") confirmed this once again. Nevertheless, covert camera surveillance is desirable in some cases, for example because theft or fraud is suspected in the workplace. This blog reflects on the ECHR ruling. It also mentions points of interest for the use of hidden cameras in practice.
Employer in this case is a supermarket in Spain. At some point, it is observed by the manager that there are discrepancies between stocks and daily sales. Employer decides to install visible and invisible cameras in response. The visible cameras are hung at the entrance and exit of the supermarket so that any thieves can be traced through the images. The invisible cameras hang near the cash registers and are used to monitor staff.
Employees are informed about the use of the visible cameras. However, this does not apply to the use of the invisible cameras.
Recordings from the invisible cameras show that about five employees (cashiers) helped customers and colleagues steal products. These employees also took products themselves. This prompted the employer to fire the employees.
In subsequent proceedings, the Spanish court accepted the camera footage as evidence both at first instance and on appeal. The workers involved subsequently filed a complaint about this with the ECHR.
The ECtHR finds that the Spanish government violated Article 8 ECHR, and thus there has been a privacy violation. Under Spanish law, the employees should have been informed about the storage and processing of personal data. However, the employees were not warned in advance that hidden cameras would be used.
The opinion of the Spanish court, that employer had no other way to prove the theft and was therefore allowed to deploy the cameras, does not follow the ECHR. The deployment was not proportionate. Employer filmed all employees for weeks, during full working hours. In that situation, at a minimum, employees should have been given general information about the covert camera surveillance, which was not done. The employees are entitled to compensation (in the amount of €4,000) from the Spanish government because of the privacy breach, according to the ECHR.
Despite the privacy violation, the dismissals of the employees are deemed valid as a matter of law. This is because the dismissals are based not only on the video recordings, but also on statements by witnesses and confessions by three of the five employees.
In the Netherlands, too, it must be assessed whether the use of (hidden) cameras is necessary, whether the intended purpose can also be achieved in a less intrusive way, and whether the business interest outweighs the privacy interest of the employees.
Colleague Suzan Wolters already wrote a blog about the deployment of cameras under the Personal Data Protection Act ("Wbp"). The strict requirements therein will (for the most part) also apply when the General Data Protection Regulation ("AVG") will be in place.
Briefly, the following is important:
there must be an exceptional situation. For example, there is a reasonable suspicion of theft and previous measures taken have not been able to put an end to it;
the use of hidden cameras may only be temporary and no more persons and/or places are captured than is necessary for the purpose;
the employees concerned should be made aware in advance that hidden camera surveillance is possible in certain situations (such as theft). This can be done, for example, through staff regulations or protocol;
the employees concerned should also be informed afterwards about the use of hidden cameras;
if a works council has been established, it must have given its prior consent to the (possible) use of hidden cameras.
Under the Wbp, covert camera surveillance requires notification to the Autoriteit Persoonsgegevens. A prior investigation must also be requested from this authority. These obligations will lapse with the advent of the AVG.
It is recommended that a protocol be drawn up for both visible and covert camera surveillance so that employees are familiar in advance with the (possible) deployment of cameras and the conditions under which filming will take place. Such a protocol should include information about the purpose for which the cameras are deployed and for how long the camera footage is kept.
