EHRM, 09-01-2018, nr. 1874/13, nr. 8567/13

The applicants submitted that the fact they had been continuously filmed in their workplace throughout their entire working day, without their knowledge and without being able to evade the monitoring, resulted in Article 8 of the Convention being applicable.

The Government argued that the applicants had been working in a public place, in direct contact with the public. They took the view that, in the absence of a consensus among the member States as to whether such a situation was comprised within the notion of ‘private life’, the Court should not extend that concept accordingly. They added that the protection of Article 8 could not extend to criminal conduct.

The Court reiterates that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore embrace multiple aspects of the person's physical and social identity (see, as a recent example, Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018). It extends in particular to aspects relating to personal identity, such as a person's name or picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012).

The concept of private life is not limited to an ‘inner circle’ in which the individual may live his or her own personal life without outside interference, but also encompasses the right to lead a ‘private social life’, that is, the possibility of establishing and developing relationships with others and the outside world (see Bărbulescu v. Romania [GC], no. 61496/08, § 70, 5 September 2017). It does not exclude professional activities in that connection (see Fernández Martínez v. Spain [GC], no. 56030/07, § 110, ECHR 2014 (extracts); Köpke v. Germany (dec.), no. 420/07, 5 October 2010; Bărbulescu, cited above, § 71; Antović and Mirković v. Montenegro, no. 70838/13, § 42, 28 November 2017; and Denisov, cited above, § 100) or activities taking place in a public context (see Von Hannover (no. 2), cited above, § 95). There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’ (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003-IX (extracts); and Von Hannover (no. 2), cited above, § 95).

There are a number of elements relevant to a consideration of whether a person's private life is concerned by measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor in this assessment (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Bărbulescu, cited above, § 73; and Antović and Mirković, cited above, § 43). As to the monitoring of an individual's actions using photographic or video devices, the Convention institutions have taken the view that the monitoring of the actions and movements of an individual in a public place using a camera which did not record the visual data does not constitute in itself a form of interference with private life (see Herbecq and the Association ‘Ligue des Droits de l’Homme’ v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, Decisions and Reports 92-B, p. 92, and Perry, cited above, § 41). Private-life considerations may arise, however, once any systematic or permanent record of such personal data comes into existence, particularly pictures of an identified person (see Peck v. the United Kingdom, no. 44647/98, §§ 58–59, ECHR 2003-I; Perry, cited above, §§ 38 and 41; and Vukota-Bojić v. Switzerland, no. 61838/10, §§ 55 and 59, 18 October 2016). As the Court has stated in this connection, a person's image constitutes one of the chief attributes of his or her personality, as it reveals the person's unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image is thus one of the essential components of personal development and presupposes the right to control the use of that image. Whilst in most cases the right to control such use involves the possibility for an individual to refuse publication of his or her image, it also covers the individual's right to object to the recording, conservation and reproduction of the image by another person (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009, and De La Flor Cabrera v. Spain, no. 10764/09, § 31, 27 May 2014).

In order to determine whether Article 8 applies, the Court also finds it relevant to address the question whether the individual in question was targeted by the monitoring measure (see Perry, cited above, § 40; Köpke, cited above; and Vukota-Bojić, cited above, §§ 56 and 58) or whether personal data was processed, used or made public in a manner or to a degree surpassing what those concerned could reasonably have foreseen (see Peck, cited above, §§ 62–63; Perry, cited above, §§ 40–41; and Vukota-Bojić, cited above, § 56).

As regards, more specifically, the issue of video-surveillance in the workplace, the Court has found that video-surveillance implemented by an employer without the employee's knowledge, for about fifty hours over a two-week period, and the use of the recordings thus obtained in the proceedings before the employment courts to justify her dismissal, interfered with her right to respect for her private life (see Köpke, cited above). The non-covert video-surveillance of university lecturers while they were teaching, where the recordings had been kept for one month and could be consulted by the dean of the faculty, was also found to have interfered with the applicants' right to respect for their private life (see Antović and Mirković, cited above, §§ 44–45).

The Court notes that in the present case the applicants were subjected to a video-surveillance measure implemented by their employer in their workplace for a period of ten days, the cameras being directed towards the supermarket checkout area and its surroundings. Thus, while the applicants were not individually targeted by the video-surveillance, it is not in dispute that the first three of them, who were working behind the tills, could have been filmed throughout their working day, while the fourth and fifth applicants were filmed when they were passing through that area.

As to whether the applicants had a reasonable expectation that their private life would be protected and respected, the Court observes that their workplace, a supermarket, was open to the public and that the activities filmed there, namely the taking of payments for purchases by the customers, were not of an intimate or private nature. Their expectation as to the protection of their private life was thus necessarily limited. However, even in public places, the creation of a systematic or permanent recording of images of identified persons and the subsequent processing of the images thus recorded could raise questions affecting the private life of the individuals concerned (see paragraph 89 above and the case-law cited therein). The Court notes that in the present case domestic law provided a formal and explicit statutory framework which obliged a person responsible for a video-surveillance system, even in a public place, to give prior information to the persons being monitored by such a system (see paragraphs 47 and 50 above). The applicants had, moreover, been informed about the installation by their employer of other CCTV cameras in the supermarket, those cameras being visible and positioned such as to film the shop's entrances and exits. In those circumstances the applicants had a reasonable expectation that they would not be subjected to video-surveillance in the other areas of the shop without being informed beforehand.

As to the processing and use of the video recordings, the Court notes that they were viewed by a number of people working for the applicants' employer even before the applicants were informed of their existence. In addition, they constituted the basis of their dismissal and were used in evidence in the Employment Tribunal proceedings.

Having regard to the foregoing, the Court finds that Article 8 is applicable in the present case.

The applicants began by drawing attention to the fact that the only questions for discussion in the present case were whether their right to respect for their private life had been infringed on account of the introduction of the video-surveillance measure without their knowledge, together with that of the limits imposed by Article 8 of the Convention on the monitoring that an employer was entitled to use against its employees. They took the view that, contrary to what the Government had suggested, the question of their possible criminal liability had already been settled at domestic level and could not be a matter of debate before the Court.

The applicants acknowledged that an employer had to be able to install surveillance systems to protect its property but argued that this right should be limited in order to preserve the employees' right to respect for their private life. They explained that, in the present case, they and all the supermarket staff had been filmed for weeks, throughout the working day, without having been informed beforehand. The monitoring had been implemented in breach of Spanish law, which provided for an obligation for the employer, if not to obtain the consent of the employees, at least to inform them beforehand of the installation of the cameras and of their rights under the data-protection legislation. If such indications had been given, both their right to respect for their private life and the employer's interests would have been preserved. The applicants thus concluded that, by refusing to find fault with this omission on the part of the employer, the domestic courts had not granted them sufficient protection under Article 8 of the Convention.

The applicants were of the opinion that the present case had to be distinguished from that of Köpke v. Germany (decision cited above) on a number of points. They argued that in the Köpke case there had been no specific legislation on video-surveillance in the workplace and the employer had complied with the conditions laid down by the domestic case-law, whereas, in the present case, their employer had breached the domestic legislation without being penalised. Furthermore, the monitoring had been more extensive in their case because it had been introduced without a time-limit, had continued throughout the working day and had involved filming not only the employees under suspicion but the whole staff.

The applicants asked the Court to follow the approach adopted in its recent judgment in Bărbulescu v. Romania (cited above), a case about an employer's monitoring of messaging and internet use by an employee, which in their view laid down the proportionality criteria to be met by any interference by an employer with the right to privacy of its employees. They argued that the measure taken by their employer clearly did not meet these requirements, given the lack of prior information about the introduction of video-surveillance and the rights provided for in the data-protection legislation. They added that this measure was not proportionate since the employer's interests could have been safeguarded while providing employees with the information required by law.

The applicants concluded that, by refusing to acknowledge that the video-surveillance by means of hidden cameras had infringed their right to respect for their private life and by holding, consequently, that their dismissals were lawful, the domestic courts had deprived them of the protection to which they were entitled against improper interference with their privacy by their employer. Contrary to what the Government had argued, this complaint was distinct from those that they had made under Article 6 of the Convention.

Moreover, as regards the possibility of complaining to the Spanish Data Protection Agency, the applicants repeated the arguments they had made in response to the Government's objection of non-exhaustion of domestic remedies (see paragraph 81 above) and submitted that, even if that Agency had found an administrative offence, the imposition of an administrative sanction on the employer would not have provided appropriate redress for the alleged breach of their right to respect for their private life. As to the possibility of seeking redress in the ordinary civil courts, they explained that those courts had no jurisdiction in respect of relations under an employment contract and that the case-law cited by the Government by way of example, concerning a situation in which the employment relationship had been severed two years earlier, could not be transposed to the present case (see paragraph 49 above). In their view, the main consequence of the video-surveillance had been their dismissal, in respect of which only the employment courts had jurisdiction.

The Government observed that, as the breach of privacy alleged by the applicants was attributable to a private company and not to the authorities, the Grand Chamber should follow the approach adopted in the case of Von Hannover (no. 2) v. Germany (cited above), in which the Court had examined whether the domestic courts had weighed up the various individual interests at stake and had struck a fair balance between them. In their view, the Spanish courts had performed such a balancing exercise and had taken due account of the applicants' right to respect for their private life.

The Government argued that, even if it would have been desirable for the applicants to have been informed of the installation of the CCTV cameras, the measures taken by the employer had not been disproportionate. They observed that the applicants had been working in an area that was open to the public, that they had been informed of the installation of certain CCTV cameras following the suspicions of theft and that they had knowingly committed criminal acts. The present application was similar to the Köpke case and the distinction made by the Chamber judgment was not justified. They explained in this connection that the monitoring had lasted for only ten days, from 15 to 25 June, on which date the employees under suspicion had been called for individual interview, and that it had been directed not at the whole staff but only at those working in the checkout area, who were in direct contact with the customers. The present case should, by contrast, be distinguished from Bărbulescu as in that case the impugned interference had concerned compliance with the employer's instructions, which the Court found to have ‘reduce[d] private social life in the workplace to zero’, whereas the video-surveillance measure at issue had pursued a legitimate aim, namely to shed light on an offence of which the company had been the victim. They added that, as the applicants had worked in an area where they were in direct contact with the public, their expectation of privacy had necessarily been reduced in comparison with a situation involving the confidentiality of communications exchanged via a messaging account.

Moreover, relying on their arguments in support of their objection of non-exhaustion of domestic remedies (see paragraph 81 above), the Government maintained that the applicants could have submitted a complaint to the Spanish Data Protection Agency alleging a failure to comply with the Personal Data Protection Act. This agency was an independent body, empowered to monitor the application of data-protection legislation and to impose fines on offenders, whereas the employment courts to which the applicants had taken their case only had jurisdiction to rule on the lawfulness of dismissals. Any failure to comply with data-protection legislation did not automatically lead to a violation of the right to respect for private life, and these two concepts were not to be confused.

The Government submitted that the applicants could also have brought an action before the ordinary civil courts to claim compensation for any damage caused by the alleged breach of the Personal Data Protection Act. In support of their argument they submitted a judgment of the Supreme Court, which had awarded compensation to an employee for the unlawful transmission of personal data by his former employer (see paragraph 49 above).

The Government concluded that the respondent State had complied with its positive obligations under Article 8 of the Convention and that its responsibility should not be engaged on account of any infringements by a private company or for a failure by the applicants to complain of such infringements to the competent domestic authorities.

The Court observes that, in the present case, the video-surveillance measure complained of by the applicants was imposed by their employer, a private company, and cannot therefore be analysed as an ‘interference’, by a State authority, with the exercise of Convention rights. The applicants nevertheless took the view that, by confirming their dismissals on the basis of that video-surveillance, the domestic courts had not effectively protected their right to respect for their private life.

The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may necessitate the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013, and Von Hannover (No. 2), cited above, § 98). The responsibility of the State may thus be engaged if the facts complained of stemmed from a failure on its part to secure to those concerned the enjoyment of a right enshrined in Article 8 of the Convention (see Bărbulescu, cited above, § 110, and Schüth v. Germany, no. 1620/03, §§ 54 and 57, ECHR 2010).

Accordingly, in line with the approach it has followed in similar cases, the Court takes the view that the complaint should be examined from the standpoint of the State's positive obligations under Article 8 of the Convention (see Bărbulescu, cited above, § 110; Köpke, cited above; and De La Flor Cabrera, cited above, § 32). While the boundaries between the State's positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing private and public interests, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 62, ECHR 2011, and Bărbulescu, cited above, § 112). The margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by independent courts. In exercising its supervisory function, the Court does not have to take the place of the national courts but to review, in the light of the case as a whole, whether their decisions were compatible with the provisions of the Convention relied upon (see Peck, cited above, § 77, and Von Hannover (no. 2), cited above, § 105).

The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life and the nature of the State's obligation will depend on the particular aspect of private life that is at issue (see Von Hannover (no. 2), cited above, § 104; Söderman, cited above, § 79; and Bărbulescu, cited above, § 113).

The Court has already held that, in certain circumstances, the fulfilment of positive obligations imposed by Article 8 requires the State to adopt a legislative framework to protect the right at issue (see X and Y v. the Netherlands, 26 March 1985, §§ 23, 24 and 27, Series A no. 91, and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003-XII, concerning cases of sexual assault on minors; and Codarcea v. Romania, no. 31675/04, §§ 102-04, 2 June 2009, as regards medical negligence). Concerning the gravest acts, such as rape, this obligation may go as far as requiring the adoption of criminal-law provisions (see M.C. v. Bulgaria, cited above, § 150). In respect of less serious acts between individuals which may affect the rights protected under Article 8, the Court takes the view that Article 8 leaves it to the discretion of States to decide whether or not to pass specific legislation and it verifies that the existing remedies were capable of providing sufficient protection of the rights at issue (see, concerning the protection of a minor's personal integrity, Söderman, cited above, §§ 86–91; and on the right to the protection of one's image, Von Hannover (no. 2), cited above, §§ 95–126, and Reklos and Davourlis, cited above, §§ 34–43).

As regards, more specifically, the monitoring of employees in the workplace, the Court has taken the view that Article 8 leaves it to the discretion of States to decide whether or not to enact specific legislation on video-surveillance (see Köpke, cited above) or the monitoring of the non-professional correspondence and other communications of employees (see Bărbulescu, cited above, § 119). It has nevertheless pointed out that, regardless of the discretion enjoyed by States in choosing the most appropriate means for the protection of the rights in question, the domestic authorities should ensure that the introduction by an employer of monitoring measures affecting the right to respect for private life or correspondence of its employees is proportionate and is accompanied by adequate and sufficient safeguards against abuse (see Bărbulescu, cited above, § 120, and Köpke, cited above).

In the Bărbulescu judgment, the Court set out a certain number of requirements that must be met by any monitoring of the correspondence and communications of employees if it is not to breach Article 8 of the Convention (see Bărbulescu, cited above, § 121). It also found in that judgment that, to ensure effective compliance with those requirements, the employees concerned must have access to a remedy before an independent judicial body with jurisdiction to determine, at least in substance, whether the relevant conditions were satisfied (ibid., § 122).

The Court is of the view that the principles established in the Bărbulescu judgment, a number of which came from the decision in Köpke, which concerned facts that were similar to those in the present case, are transposable, mutatis mutandis, to the circumstances in which an employer may implement video-surveillance measures in the workplace. These criteria must be applied taking into account the specificity of the employment relations and the development of new technologies, which may enable measures to be taken that are increasingly intrusive in the private life of employees. In that context, in order to ensure the proportionality of video-surveillance measures in the workplace, the domestic courts should take account of the following factors when they weigh up the various competing interests:

The Court will thus ascertain in the present case whether the domestic law, and in particular its application by the employment courts which examined the applicants' cases, provided sufficient protection, in weighing up the competing interests, of their right to respect for their private life.

In the present case, the positive obligations imposed on the State by Article 8 of the Convention required the national authorities to strike a fair balance between two competing interests, namely, on the one hand, the applicants' right to respect for their private life and, on the other, the possibility for their employer to ensure the protection of its property and the smooth operation of its company, particularly by exercising its disciplinary authority.

The Court notes at the outset that, at the material time, Spanish law had laid down a legal framework intended to protect the private life of employees in situations such as that in the present case. Thus, the Personal Data Protection Act and Instruction no. 1/2006 specifically on video-surveillance provided for a certain number of safeguards and conditions to be satisfied by any measure of video-surveillance and the ensuing processing of personal data. Failure to provide these safeguards could give rise to administrative sanctions and could engage the civil liability of the person responsible for the data processing (see paragraphs 46 and 48 above). In addition, Article 20 § 3 of the Employment Regulations limited the employer's use of monitoring, as regards the fulfilment by employees of their employment duties, by requiring that the measures taken in that regard were compatible with their human dignity. Moreover, the applicable rules of procedure required the domestic courts to exclude any evidence obtained in breach of a fundamental right. Lastly, there was case-law of the ordinary courts and the Constitutional Court requiring that any measures interfering with the privacy of employees had to pursue a legitimate aim (‘appropriateness test’), and had to be necessary for the fulfilment of the aim pursued (‘necessity test’) and proportionate to the circumstances of each case (‘strict proportionality test’) (see paragraphs 54 et seq. above).

In these circumstances the Court observes that the regulatory framework which was in place under domestic law is not at issue in the present case. The applicants have not in fact questioned the pertinence of that framework (see paragraph 97 above), but they argued that it was precisely the refusal of the employment courts to draw the appropriate conclusions from the employer's failure to fulfil its domestic-law obligation to provide information which had breached the Convention.

Accordingly, the Court will consider the manner in which the domestic courts to which the applicants appealed examined their complaint that their right to respect for their private life in the workplace had been breached and whether, as the Government argued, other domestic-law remedies could have provided them with appropriate protection.

The Court would begin by noting that the employment courts identified the various interests at stake, referring expressly to the applicants' right to respect for their private life and the balance to be struck between that right and the employer's interest in ensuring the smooth running of the company by exercising its management powers. It will thus ascertain how those courts took into account the factors listed above when they weighed up these interests.

The domestic courts first found, in accordance with the requirements of the Constitutional Court's case-law, that the installation of the video-surveillance had been justified by legitimate reasons, namely the suspicion, put forward by the supermarket manager on account of the significant losses recorded over several months, that thefts had been committed. They also took account of the employer's legitimate interest in taking measures in order to discover and punish those responsible for the losses, with the aim of ensuring the protection of its property and the smooth functioning of the company.

The domestic courts then examined the extent of the monitoring and the degree of intrusion into the applicants' privacy, finding that the measure was limited as regards the areas and staff being monitored — since the cameras only covered the checkout area, which was likely to be where the losses occurred — and that its duration had not exceeded what was necessary in order to confirm the suspicions of theft. In the Court's opinion this assessment could not be regarded as unreasonable. It notes that the monitoring did not cover the whole shop but targeted the areas around the tills, where thefts were likely to have been committed. The three applicants who worked as cashiers were indeed monitored by CCTV cameras throughout their working day. As a result of their jobs within the company, they could not evade these recordings, which were aimed at all the staff working in the checkout area, and were operated permanently and without any limitation (contrast Köpke, cited above, concerning an applicant who was both a shop assistant and cashier of the store in question, the video-surveillance measure thus not covering the entirety of her place of work). To some extent, they thus found themselves in limited areas (see, mutatis mutandis, Allan v. the United Kingdom, no. 48539/99, § 35, ECHR 2002-IX, and Perry, cited above, §§ 39–43). As to the fourth and fifth applicants, the CCTV cameras filmed them whenever they passed through the checkout area.

At the same time it should be pointed out that the applicants' duties were performed in a place that was open to the public and involved permanent contact with customers. The Court takes the view in this connection that it is necessary to distinguish, in the analysis of the proportionality of a video-surveillance measure, the various places in which the monitoring was carried out, in the light of the protection of privacy that an employee could reasonably expect. That expectation is very high in places which are private by nature, such as toilets or cloakrooms, where heightened protection, or even a complete ban on video-surveillance, is justified (see, to this effect, the relevant international instruments cited in paragraphs 61 and 65 above). It remains high in closed working areas such as offices. It is manifestly lower in places that are visible or accessible to colleagues or, as in the present case, to the general public.

As regards the extent of the measure over time, the Court notes that while, as the applicants argued, the employer had not set the duration of the video-surveillance beforehand, in actual fact it lasted for ten days and ceased as soon as the employees responsible had been identified. The length of the monitoring does not therefore appear excessive in itself (compare Köpke, cited above, where a duration of fourteen days was not found to be disproportionate). Lastly, only the supermarket manager, the company's legal representative and the union representative viewed the recordings obtained through the impugned video-surveillance before the applicants themselves had been informed. Having regard to these factors, the Court takes the view that the intrusion into the applicants' privacy did not attain a high degree of seriousness.

As regards the consequences of the impugned monitoring for the applicants, the Court finds that they were significant because the employees concerned were dismissed on the basis of recordings obtained by that means. It nevertheless observes, as the domestic courts also noted, that the video-surveillance and 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 (compare Peck, cited above, §§ 62–63, where the images recorded by a CCTV camera of public places showing the applicant's attempted suicide had been distributed to the media).

The domestic courts additionally found that, in the circumstances of the case, there were no other means by which to fulfil the legitimate aim pursued and that the measure should therefore be regarded as ‘necessary’ within the meaning of the Constitutional Court's case-law (see paragraph 33 above). Even if it would have been desirable for the domestic courts to examine in a more in-depth manner the possibility for the employer to have used other measures entailing less intrusion into the private life of the employees, the Court cannot but note that the extent of the losses identified by the employer suggested that thefts had been committed by a number of individuals and the provision of information to any staff member might well have defeated the purpose of the video-surveillance, which was, as those courts noted, to discover those responsible for the thefts but also to obtain evidence for use in disciplinary proceedings against them.

The Court further observes that domestic law prescribed a certain number of safeguards for the purpose of preventing any improper interference with the rights of individuals whose personal data was subject to collection or processing. The Personal Data Protection Act in particular conferred on those individuals the right to be informed of such safeguards beforehand, as provided for in section 5 of the Act, together with a right of access, rectification and deletion in respect of the data collected. A requirement of proportionality in the collection and use of the images obtained through video-surveillance was expressly laid down by Instruction no. 1/2006 and, according to the Constitutional Court's case-law, the domestic courts had to review the appropriateness, necessity and proportionality of such measures in the light of the fundamental rights guaranteed by the Constitution (see paragraphs 47, 50 and 54 above).

As to whether, lastly, the applicants had been informed of the installation of the video-surveillance, the Court notes that it was not in dispute that two types of camera had been installed in the supermarket where they worked: on the one hand, visible cameras directed towards the shop's entrances and exits, of which the employer had informed the staff; and, on the other, hidden cameras directed towards the checkout areas, of which neither the applicants nor the other staff members had been informed. It was stated in the parties' observations that one or more information boards had been placed in the supermarket to notify the public of the presence of CCTV cameras but the exact content of the information on these boards has not been ascertained.

The Court observes that, while both Spanish law and the relevant international and European standards do not seem to require the prior consent of individuals who are placed under video-surveillance or, more generally, who have their personal data collected, those rules establish that it is, in principle, necessary to inform the individuals concerned, clearly and prior to implementation, of the existence and conditions of such data collection, even if only in a general manner (see paragraphs 47, 60 and 63 above). It takes the view that the requirement of transparency and the ensuing right to information are fundamental in nature, particularly 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 (see paragraphs 61–62 and 64–65 above). It would point out, however, that the provision of information to the individual being monitored and its extent constitute just one of the criteria to be taken into account in order to assess the proportionality of a measure of this kind in a given case. However, if such information is lacking, the safeguards deriving from the other criteria will be all the more important.

In the present case, the Court observes that the employment courts which examined the applicants' claims carried out a detailed balancing exercise between, on the one hand, their right to respect for their private life, and on the other the employer's interest in ensuring the protection of its property and the smooth operation of the company. It notes that the proportionality criteria established by the Constitutional Court's case-law and followed in the present case are close to those which it has developed in its own case-law. The domestic courts thus verified whether the video-surveillance was justified by a legitimate aim and whether the measures adopted for that purpose were appropriate and proportionate, having observed in particular that the legitimate aim pursued by the employer could not be attained by measures that were less intrusive for the applicants' rights.

Admittedly, the employment courts did not take account of the employer's failure, as alleged by the applicants, to provide them with the prior information required by section 5 of the Personal Data Protection Act, having considered the matter irrelevant and not capable of calling into question the proportionality, in the constitutional sense, of the measure, provided that the other criteria laid down by the Constitutional Court were satisfied. Given the importance of the right to information in such cases, the Court finds that only an overriding requirement relating to the protection of significant public or private interests could justify the lack of prior information.

However, in the specific circumstances of the present case, having regard particularly to the degree of intrusion into the applicants' privacy (see paragraphs 125-26 above) and to the legitimate reasons justifying the installation of the video-surveillance, the Court finds that the employment courts were able, without overstepping the margin of appreciation afforded to national authorities, to take the view that the interference with the applicants' privacy was proportionate (see, for a similar situation, Köpke, cited above). Thus, while it cannot accept the proposition that, generally speaking, 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, the existence of reasonable suspicion that serious misconduct has been committed and the extent of the losses identified in the present case may appear to constitute weighty justification. This is all the more so in a situation where the smooth functioning of a company is endangered not merely by the suspected misbehaviour of one single employee, but rather by the suspicion of concerted action by several employees, as this creates a general atmosphere of mistrust in the workplace.

Moreover, as the Government argued, the applicants had other remedies available to them, as provided for by the Personal Data Protection Act, for the specific purpose of obtaining sanctions for breaches of that legislation. The applicants could thus have complained to the Data Protection Agency of a failure by the employer to fulfil its obligation to provide prior information, as required by section 5 of that Act. The Agency had the power to investigate the alleged breach of the law and impose financial penalties on the person responsible. They could also have referred the matter to the ordinary courts in order to obtain redress for the alleged breach of their rights under the Personal Data Protection Act. The Court notes in this connection that while the case-law cited by the Government (see paragraph 49 above) does indeed concern a situation which is not identical to that of the present case, the right to obtain redress for damage caused by a breach of the Personal Data Protection Act was expressly provided for in section 19 thereof and there is no reason to question the effectiveness of that remedy now.

Domestic law had thus made available to the applicants other remedies by which to secure the specific protection of personal data, but they chose not to use those remedies. The Court reiterates in this connection that the effective protection of the right to respect for private life in the context of video-surveillance in the workplace may be ensured by various means, which may fall within employment law but also civil, administrative or criminal law (see, mutatis mutandis, Bărbulescu, cited above, § 116).

Under those circumstances, having regard to the significant safeguards provided by the Spanish legal framework, including the remedies that the applicants failed to use, and the weight of the considerations justifying the video-surveillance, as taken into account by the domestic courts, the Court concludes that the national authorities did not fail to fulfil their positive obligations under Article 8 of the Convention such as to overstep their margin of appreciation. Accordingly, there has been no violation of that provision.

The Court points out that it has not found a violation of Article 8 of the Convention on account of the video-surveillance to which the applicants were subjected (see paragraph 137 above). It notes, however, that the applicants argued that the video-surveillance had been installed in breach of the statutory obligation under domestic law to provide prior information and that the employment courts did not address that question, having deemed it not to be pertinent (see paragraph 34 above). The Court will thus examine whether the use in evidence of the images obtained by means of the video-surveillance at issue undermined the fairness of the proceedings as a whole.

The Court begins by noting that, in the context of the proceedings before the Employment Tribunal, the applicants had access to the recordings obtained by means of the impugned video-surveillance and were able to contest their authenticity and oppose their use in evidence. The domestic courts examined the applicants' argument that the recordings had to be excluded from the case file because they had been obtained in breach of a fundamental right and in their decisions they gave extensive reasoning on this point. They thus found that, in line with the Constitutional Court's case-law, the video-surveillance had not been implemented in breach of the applicants' right to respect for their private life. They further found that the images obtained from the video-surveillance were not the only items of evidence in the file.

As regards the quality of evidence, the Court notes that the applicants did not at any time dispute the authenticity or accuracy of the footage recorded by means of video-surveillance, their main complaint being based on the lack of prior information about the installation of the cameras. The domestic courts, for their part, found that the recordings presented sufficient guarantees of authenticity. Given the circumstances in which the recordings were obtained, the Court does not see any reason to question their authenticity or reliability. It thus takes the view that they constituted sound evidence which did not necessarily need to be corroborated by other material.

The Court would nevertheless note that the recordings in question were not the only evidence on which the domestic courts based their findings. It can be seen from their decisions that they also took account of the applicants' statements, the testimony of the supermarket manager, the company's legal representative and the staff representative — to whom the applicants had admitted the misconduct — and the expert's report comparing the images recorded by the video-surveillance and the till receipts. The Court observes that the till receipts, which constitute objective evidence that cannot be ‘vitiated’ by the viewing of the recordings, showed that a significant number of purchases had been cancelled without payment. As regards the third, fourth and fifth applicants, the courts also relied on their acknowledgment of the facts in the settlement agreements they had signed. Having examined this evidence as a whole, they found the facts to be comprehensively established.

In the light of the foregoing, the Court takes the view that the use in evidence of the images obtained by video-surveillance did not undermine the fairness of the proceedings in the present case.

The Court would begin by observing that the domestic courts accepted the settlement agreements signed by these three applicants, having taken the view that their consent had not been vitiated. However, unlike the Employment Tribunal, which had found that, by signing those agreements, they had waived their right to take legal action, the High Court, ruling on appeal, found that those agreements did not constitute a waiver by the applicants of their right of access to a court and it examined the case on the merits. It took the view that the agreements gave effect to the unequivocal acceptance by the applicants of the employer's decision to terminate their employment contracts on the grounds set out in the dismissal letter. In those circumstances, the Court finds that the complaint, as set out by the applicants, relates to the assessment by the domestic courts of the validity and weight of evidence.

It notes in this connection that the three applicants were able to dispute the validity of the settlement agreements and oppose their admission in evidence. The domestic courts analysed all the arguments put forward by those applicants and took the view that the circumstances of the present case did not indicate any intimidation or deceit on the part of the employer. They examined the circumstances in which the agreements had been signed and found that the presence of the union representative at the time of signing, the prior acknowledgment of the acts by the applicants during a meeting with that representative, and the fact that other employees who were dismissed had not signed the employer's proposed agreement, ruled out any indication of duress. Their findings in this connection appear neither arbitrary nor manifestly unreasonable. Lastly, as noted above, the domestic courts based their decisions on various items of evidence (see paragraph 157 above).

In the light of those observations, there is no reason for the Court to call into question the findings of the domestic courts as to the validity and weight of the settlement agreements signed by the third, fourth and fifth applicants. It thus finds that there has been no violation of Article 6 on this point either.

All the applicants considered that the covert video surveillance of their place of work had seriously interfered with their right to privacy. They contended that the purpose of Article 8 of the Convention was not limited to protect the individual against interference by the public authorities, but also to secure respect for private life even in the sphere of the relations of individuals between themselves.

The applicants further noted that, in the present case, a video recording of them at their workplace had been made without their employer giving them prior notice, as was required by the domestic law in force at the time (and, in particular, by the Personal Data Protection Act).

They also argued that the covert video surveillance had not been limited in time as it had had a permanent nature with the purpose of monitoring all staff during working hours.

The applicants further alleged that the use of the video recordings as evidence in the proceedings before the domestic courts had seriously interfered with their right to privacy.

The Government firstly noted that installation of the covert video surveillance had been carried out by a private company, which meant that any violation of the Convention could not be attributable to the State.

They further stated that the employer had informed the employees of the installation of a system of video surveillance for theft prevention purposes. They also acknowledged, however, that the employees had not been informed of the installation of covert video surveillance zoomed in on the cash desks. According to the Government, the employees also had not specifically been informed of their rights under the Personal Data Protection Act.

The Government also noted that the legislation in force at the time provided every citizen with a means to complain about the use of covert video surveillance to the Data Protection Agency, which could have led to the company being administratively sanctioned.

Lastly, the Government concluded that the installation of covert video surveillance without prior notice to the applicants had not been in conformity with Article 18.4 of the Spanish Constitution or Article 8 of the Convention. Nonetheless, they reiterated that, under Article 1 of the Convention, the State should bear no responsibility, since the covert video surveillance had been carried out by a private company.

The ETUC, intervening as a third party, expressed its concern as regards the fact that States might not sufficiently protect the privacy of workers in the workplace. The ETUC emphasised that the protection of privacy in general and in employment relations in particular was a relatively new aspect of international human rights protection and that the risks for privacy deriving from new technologies were increasing. This was why international, and, in particular, European Human Rights protection had developed in the sense that irrespective of the question of permitted processing of personal data as such, the person(s) concerned had to be informed. For the ETUC, a person's consent was, in principle, necessary.

The ETUC also stressed that the right to be informed of the existence of personal data was expressly recognised in domestic law under section 5(1) of the Personal Data Protection Act. It also highlighted how several European legal instruments (at Council of Europe as well as European Union level) had addressed the protection of privacy, either in the general form of protection of personal data or more specifically as video surveillance at the workplace.

The ETUC concluded that the right of the data subject to be informed before the processing of personal data was to be considered as a right derived from Article 8 of the Convention as a procedural safeguard, a right which was also enhanced by the principle of prior consent before data processing.

The Court reiterates that ‘private life’ within the meaning of Article 8 of the Convention is a broad term not susceptible of exhaustive definition. The choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting State's margin of appreciation. There are different ways of ensuring respect for private life, and the nature of the State's obligation will depend on the particular aspect of private life that is at issue (Söderman v. Sweden [GC], no. 5786/08, § 79; and Bărbulescu v. Romania [GC], no. 61496/08, § 113).

The concept of private life extends to aspects relating to personal identity, such as a person's name or picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI). It may include activities of a professional or business nature and may be concerned in measures effected outside a person's home or private premises (compare Peck v. the United Kingdom, cited above, §§ 57–58; Perry v. the United Kingdom, cited above, §§ 36–37; and Benediktsdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009).

In the context of the monitoring of the actions of an individual by the use of photographic equipment, the Court has found that private-life considerations may arise concerning the recording of the data and the systematic or permanent nature of the recording (compare P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001-IX; Peck, cited above, §§ 58–59; and Perry, cited above, § 38). A person's image constitutes one of the chief attributes of his or her personality, as it reveals unique characteristics and distinguishes him or her from his or her peers. The right to the protection of one's image is thus one of the essential components of personal development and presupposes the right to control the use of that image (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009).

The Court has considered relevant in this connection whether or not a particular individual was targeted by the monitoring measure (compare Rotaru v. Romania [GC], no. 28341/95, §§ 43–44, ECHR 2000-V; Peck, cited above, § 59; and Perry, cited above, § 38) and whether personal data was processed or used in a manner constituting an interference with respect for private life (see, in particular, Perry, cited above, §§ 40–41, and I. v. Finland, no. 20511/03, § 35, 17 July 2008). A person's reasonable expectation as to privacy is a significant though not necessarily conclusive factor (see Halford v. the United Kingdom, 25 June 1997, § 45, Reports of Judgments and Decisions 1997-III; and Perry, cited above, § 37; and Bărbulescu, cited above, § 73).

The Court observes that, in the present case, the employer decided to install surveillance cameras consisting of both visible and hidden cameras. The employees were only aware of the visible cameras zoomed in on the supermarket exits — they were not informed of the installation of video surveillance covering the cash desks.

The Court observes that the covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable intrusion into his or her private life. It entails a recorded and reproducible documentation of a person's conduct at his or her workplace, which he or she, being obliged under the employment contract to perform the work in that place, cannot evade (see Köpke, cited above). The Court is therefore satisfied that the applicants' ‘private life’ within the meaning of Article 8 § 1 was concerned by these measures.

According to the Government, the video surveillance was carried out on the instructions of the applicants' employer, a private company which could not by its actions engage State responsibility under the Convention. The Court reiterates, however, that, although the purpose of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see von Hannover, cited above, § 57; I. v. Finland, cited above, § 36; K.U. v. Finland, no. 2872/02, §§ 42–43, ECHR 2008; Söderman, cited above, § 78 and Bărbulescu, cited above, § 108).

Therefore, the Court has to examine whether the State, in the context of its positive obligations under Article 8, struck a fair balance between the applicants' right to respect for their private life and both their employer's interest in the protection of its organisational and management rights concerning its property rights, as well as the public interest in the proper administration of justice (see Bărbulescu, cited above, § 112).

The Court firstly notes that the covert video surveillance was carried out after losses had been detected by the shop supervisor, raising an arguable suspicion of theft committed by the applicants as well as other employees and customers.

The Court also observes that the visual data obtained entailed the storage and processing of personal data, closely linked to the private sphere of individuals. This material was thereby processed and examined by several persons working for the applicants' employer (among others, the union representative and the company's legal representative) before the applicants themselves were informed of the existence of the video recordings.

The Court further notes that the legislation in force at the time of the events contained specific provisions on personal data protection. Indeed, under section 5 of the Personal Data Protection Act, the applicants were entitled to be ‘previously and explicitly, precisely and unambiguously informed’ of ‘the existence of a personal data file or that the data will be processed, the purpose thereof and the recipients of the information; the obligatory or optional nature of their response to the questions asked; the consequences of providing or refusing to provide the data; the existence of rights of access, rectification, erasure and objection; and the identity and address of the controller or, as appropriate, his representative’ (see paragraph 29 above). Article 3 of Instruction no. 1/2006 issued by the Spanish Data Protection Agency also specified that this obligation also applied to anyone using video surveillance systems, in which case, he or she had to place a distinctive sign indicating the areas that were under surveillance, and to make a document available containing the information provided in section 5 of the Personal Data Protection Act (see paragraph 30 above).

The Court observes that, as acknowledged by the domestic courts, the applicants' employer did not comply with the obligation to inform the data subjects of the existence of a means of collecting and processing their personal data, as prescribed in the aforementioned domestic legislation. In addition to this, the Court notes that the Government have specifically acknowledged that the employees were not informed of the installation of covert video surveillance zoomed in on the cash desks or of their rights under the Personal Data Protection Act (see paragraph 48 above).

Despite this, the domestic courts considered that the measure had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, necessary and proportionate, since there had been no other equally effective means of protecting the employer's rights which would have interfered less with the applicants' right to respect for their private life. This was stated by the Employment Tribunal in respect of the first and second applicants and later confirmed by the Catalonia High Court of Justice in respect of all the applicants, which specifically declared that the covert video surveillance (and its use as valid evidence in the framework of the proceedings) had been in conformity with Article 20.3 of the Labour Regulations, and had been proportionate to the legitimate aim pursued and necessary.

The Court observes that, in the present case, the situation differs from that in Köpke. Indeed, in that case, at the time the employer carried out the covert video surveillance following suspicions of theft against two employees, the conditions under which an employer could resort to the video surveillance of an employee in order to investigate a criminal offence had not yet been laid down in statute (although the German Federal Employment Tribunal had developed in its case-law important guidelines regulating the legal framework governing covert video surveillance in the workplace). In the present case, however, the legislation in force at the time of the facts of the case clearly established that every data collector had to inform the data subjects of the existence of a means of collecting and processing their personal data (see paragraphs 29 and 30 above). In a situation where the right of every data subject to be informed of the existence, aim and manner of covert video surveillance was clearly regulated and protected by law, the applicants had a reasonable expectation of privacy.

Furthermore, in the present case and unlike in Köpke, the covert video surveillance did not follow a prior substantiated suspicion against the applicants and was consequently not aimed at them specifically, but at all the staff working on the cash registers, over weeks, without any time limit and during all working hours. In Köpke the surveillance measure was limited in time — it was carried out for two weeks — and only two employees were targeted by the measure. In the present case, however, the decision to adopt surveillance measures was based on a general suspicion against all staff in view of the irregularities which had previously been revealed by the shop manager.

Consequently, the Court cannot share the domestic courts' view on the proportionality of the measures adopted by the employer with the legitimate aim of protecting the employer's interest in the protection of its property rights. The Court notes that the video surveillance carried out by the employer, which took place over a prolonged period, did not comply with the requirements stipulated in Section 5 of the Personal Data Protection Act, and, in particular, with the obligation to previously, explicitly, precisely and unambiguously inform those concerned about the existence and particular characteristics of a system collecting personal data. The Court observes that the rights of the employer could have been safeguarded, at least to a degree, by other means, notably by previously informing the applicants, even in a general manner, of the installation of a system of video surveillance and providing them with the information prescribed in the Personal Data Protection Act.

Having regard to the foregoing, and notwithstanding the respondent State's margin of appreciation, the Court concludes in the present case that the domestic courts 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.

All the applicants argued that the domestic courts had based the judgments mainly on the findings of the unlawful surveillance carried out by the employer. They further pointed out that they had not been aware of the existence of the covert video surveillance and had only had access to the obtained data once they had already been dismissed. Consequently, they had been prevented from exercising their rights of access, rectification, erasure and objection, as prescribed by section 5 of the Personal Data Protection Act. They added that the videos, which had been obtained in violation of domestic and international law, had been declared admissible by the domestic courts in violation of the applicants' right to a fair trial.

The third, fourth and fifth applicants further stated that the settlement agreements by which the applicants had committed themselves not to bring proceedings for unfair dismissal against their employer should have been declared void since they had signed them against their will and under duress. They added that the employer had had no capacity to waive its right to bring criminal charges against the applicants and therefore no power to prevent a possible criminal complaint against them.

The Government pointed out that the domestic judgments had not been solely based on the covert surveillance footage, but also on several other pieces of evidence, such as the witness statement issued by the union representative, the supporting documents proving the daily accounting irregularities, as well as the applicants' own behaviour at the time of their dismissals — they all acknowledged the commission of the thefts during the meetings, in the presence of the union representative and the company's legal representative, among others.

As regards the third, fourth and fifth applicants, the Government stressed that the settlement agreements had been valid since they had signed them freely and voluntarily.

The ETUC considered that a judgment mainly based on covert surveillance footage would be in breach of Article 6 of the Convention.

As regards the settlement agreements signed by the third, fourth and fifth applicants, the ETUC pointed out that such agreements were often used when confronting workers with alleged misconduct, creating a situation where the employees felt under specific pressure, were not properly advised and were not aware and even less dared to require the recognition of their procedural and substantial rights. The ETUC concluded that the specificity of employment relations required a cautious approach in respect of recognising such agreements.

The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.

While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, Series A no. 140, p. 29, §§ 45–46; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

The Court reiterates in this connection that it is not its function to determine, as a matter of principle, whether particular types of evidence —for example, evidence obtained unlawfully in terms of domestic law — may be admissible (see Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports 1997-III; and Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V). The salient question is therefore not whether evidence that was obtained unlawfully or in breach of the Convention should or should not have been admitted, but whether the proceedings as a whole, including the way in which evidence was taken, were fair. This involves an examination of the unlawfulness in question and, where a violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan, cited above, § 34; and P.G. and J.H. v. the United Kingdom, cited above, § 76).

As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including respect for the applicant's defence rights and the quality and importance of the evidence in question (compare, inter alia, Khan, cited above, §§ 35–40; P.G. and J.H. v. the United Kingdom, cited above, §§ 77–79; and Bykov v. Russia [GC], no. 4378/02, 10 March 2009, §§ 94–98, in which no violation of Article 6 was found). Matters to be taken into account are whether the applicant was able to challenge the authenticity of the evidence and to oppose its use, whether the evidence was of sufficient quality — which entails an inquiry as to whether the circumstances in which it was obtained could cast doubt on its reliability or accuracy — and whether it was supported by other material (see Schenk v. Switzerland, cited above, §§ 46–48; Khan, cited above, §§ 34 and 35; P.G. and J.H. v. the United Kingdom, cited above, §§ 76 and 77; Allan v. the United Kingdom, no. 48539/99, §§ 42 and 43; and Bykov [GC], cited above, §§ 88–90). Lastly, the Court will attach weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (compare, in particular, Khan, cited above, §§ 35 and 37).

Turning to the present case and for the sake of clarity, the Court will firstly analyse the alleged violation of Article 6 § 1 as regards all the applicants and in connection with the use as evidence of the covert video surveillance. It will then look at the alleged violation of that Article as regards the third, fourth and fifth applicants in connection with the validity of the settlement agreements signed by them.