EHRM, 18-10-2016, nr. 61838/10

The applicant claimed that the systematic recording and storage or publication of images fell within the scope of Article 8. Even when the requirements for the protection of private sphere in a public space were less stringent, as in the case of a person of public interest, they could nevertheless not be unconcerned. In this regard, the Court should primarily consider whether the person involved could reasonably expect to enjoy the privacy afforded to the private sphere when moving in the public sphere (‘reasonable expectation of privacy’).

The applicant pointed out that she was systematically and intentionally followed and filmed by professionals specifically trained for this purpose, which, coupled with the storage and selection of the video material, constituted a serious interference with her right to respect for private life. The impact of the surveillance on her private life was evident in that the insurance company used those images in order to significantly reduce the amount of benefits she was entitled to receive.

The Government argued that the surveillance of the applicant was a measure of last resort of an exceptional nature. Under normal circumstances the information provided by the insured persons, their employer and doctors was sufficient to conduct a reliable assessment of an insurance benefit claim. Surveillance by a private investigator was requested only in a small proportion of cases when other measures of examination had proved inconclusive and the insured person had not fulfilled her or his obligation to provide the requested information. In these circumstances, surveillance aimed at systematically collecting and retaining data on facts that happened in the public arena and that anyone could note, for example the observed person's way of walking, climbing the stairs, driving, carrying loads or exercising.

In the Government's view, the surveillance of the applicant could thus only marginally have affected the scope of application of Article 8 of the Convention and did not constitute a serious infringement of her right to respect for private life. This, in turn, also relatively diminished the need for clarity and precision of the legal basis of the surveillance in question.

The Court reiterates that ‘private life’ within the meaning of Article 8 is a broad term not susceptible of exhaustive definition. Article 8 protects, inter alia, a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’ (see Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003-I; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003-IX (extracts); and Köpke v. Germany (dec), no. 420/07, 5 October 2010).

The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. This may include activities of a professional or business nature and may be implicated in measures effected outside a person's home or private premises (see Peck, cited above, §§ 57–58; Perry, cited above, §§ 36–37; and Benediktsdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009).

However, the possibility cannot be excluded that a person's private life may be implicated in measures effected outside a person's home or private premises. A person's reasonable expectation as to privacy is a significant, although not necessarily conclusive, factor (see Perry, cited above, § 37).

In the context of monitoring of actions of an individual through the use of video or photographic equipment, the Court has held that the normal use of security cameras as such, whether in the street or on public premises, where they serve a legitimate and foreseeable purpose, did not raise an issue under Article 8 of the Convention (see Perry, cited above, § 38). However, private-life considerations may arise concerning recording of the data and the systematic or permanent nature of such a record (see Peck, cited above, §§ 58–59; and Perry, cited above, § 38).

Further elements which the Court has taken into account in this respect include the question whether there has been a compilation of data on a particular individual, whether there has been processing or use of personal data or whether there has been publication of the material concerned in a manner or degree beyond that normally foreseeable (see Uzun v. Germany, no. 35623/05, § 45, ECHR 2010 (extracts)).

In a case concerning secret video recording of an employee at her workplace made on the instructions of her employer, the Court found that the covert video surveillance during some fifty hours, the recording of personal data, the examination of the tapes by third parties without the applicant's knowledge or consent, the use of the videotapes as evidence in the proceedings before the labour courts, and the domestic courts refusal to order the destruction of the tapes, had all seriously interfered with the applicant's right to privacy (see Köpke, cited above).

Turning to the present case, the Court must determine whether the use of the footage and images of the applicant in public spaces obtained by secret surveillance constituted processing or use of personal data of a nature to constitute an interference with her respect for private life. In that connection, the Court observes that the applicant was systematically and intentionally watched and filmed by professionals acting on the instructions of her insurance company on four different dates over a period of twenty-three days. The material obtained was stored and selected and the captured images were used as a basis for an expert opinion and, ultimately, for a reassessment of her insurance benefits.

By applying the principles outlined above to the circumstances surrounding the applicant's surveillance, the Court is satisfied that the permanent nature of the footage and its further use in an insurance dispute may be regarded as processing or collecting of personal data about the applicant disclosing an interference with her ‘private life’ within the meaning of Article 8 § 1.

The applicant argued that the surveillance had not been in ‘accordance with the law’. In particular, the legal provisions on which the surveillance had been based were not sufficiently certain, precise or clear and thus not foreseeable as to their effects, in contrast to, for example, the domestic provisions regulating surveillance carried out by the police.

In fact, Articles 28 and 43 of the Social Security Act did not specify when, where and under what conditions surveillance was permissible, the time and length of surveillance measures, how the destruction of material obtained in this way was managed by the surveillance company, how the person monitored could complain about the surveillance and the destruction of the images, or how the person conducting the surveillance had to be trained. The law only vaguely defined that surveillance could be carried out when it seemed to be ‘objectively justified’, but did not specify this concept further. It follows that the law was not sufficiently clear for it to be ‘foreseeable’.

The applicant further submitted that, according to domestic case-law, the conditions for a surveillance operation to be lawful were the high amount of the claim for damages and inconsistencies in the medical reports at hand. As to the first condition, surveillance would be permissible virtually any time that a victim of a traffic accident claimed a large amount in damages, which was usually the case. As to the second condition, the applicant pointed out that the findings of the medical reports did not depend on the victim of the accident, but on the medical experts in charge, who had often been commissioned by the insurance company itself.

The Government argued that the minor interference with the applicant's Article 8 rights had a basis in domestic law which was sufficiently foreseeable and accessible. In particular, the Federal Court repeatedly recognised that Article 43, read in conjunction with Article 28 (2) of the Social Security Act and Article 96 (b) of the Accident Insurance Act formed a sufficient legal basis for the surveillance of an insured person. The said provisions prescribed surveillance as a measure of last resort used when the insured person did not comply with her or his obligation to provide information requested and the insurance company had to process certain data necessary for it to perform the tasks assigned to it in domestic law. The law allowed the collection of data only in public spaces for a limited period of time and made it available only to a restricted number of persons.

Moreover, there were effective procedures guaranteeing the respect of the insured person's rights. According to the case-law of the Federal Court, the domestic law did not allow intrusion into the intimate sphere of the person being watched, or the commission of any punishable acts against him or her. Insured persons were protected against the abuse of surveillance measures by a number of domestic law provisions, namely Article 28 of the Civil Code and Article 179quater of the Criminal Code. In particular, it was forbidden to contact the insured person in order to interfere with her or his life, surveillance could be performed only for a limited period of time, and collected data could be seen only by a small number of people for the fulfilment of the insurer's legal tasks.

Pursuant to the court's case-law, the expression ‘in accordance with the law’ within the meaning of Article 8 § 2 requires, firstly, that the measure should have some basis in domestic law. It also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him. It must also be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Uzun, cited above, § 60; and Kennedy, cited above, § 151).

The Court has held on several occasions that the reference to ‘foreseeability’ in the context of secret surveillance measures by State authorities could not be the same as in many other fields (see, as a most recent authority, Roman Zakharov v. Russia [GC], no. 47143/06, § 229, 4 December 2015). Foreseeability in that specific context cannot mean that individuals should be able to foresee when the authorities are likely to resort to secret surveillance so that they can adapt their conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures (see Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Uzun, cited above, §§ 61–63; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 75, 28 June 2007; and Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011). In view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated (see Uzun, cited above, § 61).

In addition, in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of abuse of power, compatibility with the rule of law requires domestic law to provide adequate protection against arbitrary interference with Article 8 rights. The court's assessment in this respect depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Uzun, cited above, § 63).

Turning to the present case, it is not in dispute that the surveillance measure applied to the applicant was based on Article 43 read in conjunction with Article 28 (2) of the Social Security Act and Article 96 (b) of the Accident Insurance Act (see §§ 38 and 40 above). These articles, read together, provide that when an insured person does not comply with the obligation to submit the requested information, insurance companies are allowed to take of their own motion the necessary investigative measures and collect necessary information. In particular, they are allowed to process and require to have processed personal data, including sensitive data and personality profiles necessary in order to establish rights to benefits and to calculate, allocate and coordinate them with those from other social insurance funds.

There is no doubt that those provisions were accessible to the applicant. What remains to be established is whether they constituted a sufficiently clear and detailed legal basis for the interference at stake in the instant case.

In determining whether the provisions of domestic law on which the applicant's surveillance was based complied with the requirement of ‘foreseeability’, the Court notes that the said provisions were limited to obliging the insured persons to ‘provide all information necessary to establish their rights’ (Article 28 (2) of the Social Security Act), allowing insurance companies to ‘take investigative measures and collect the necessary information’ (Article 43 of the Social Security Act) as well as to ‘process and require [the processing of] personal data’ (Article 96 of the Accident Insurance Act) in order to carry out their duties when an insured person refused to cooperate by providing the necessary information herself or himself. In the court's view, the said expressions did not seem to either expressly include or even imply the recording of images or videos among the investigative measures that could be deployed by insurance companies. However, it observes that the domestic courts, which are primarily called upon to interpret and apply domestic law (see, among many other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998-II), concluded that the said provisions covered surveillance in such circumstances (see §§ 35 and 43 above).

In examining whether domestic law contained adequate and effective guarantees against abuse, the Court takes note of the Government's argument that Article 28 of the Civil Code and Article 179quater of the Criminal Code, coupled with the case-law of the Federal Court (see § 43 above), constituted sufficient safeguards against abuse of secret surveillance measures as they restricted the measure to the actions taken in public and forbid the making of contact with the insured person with the aim of interfering in his or her life.

While the above jurisprudence of the Federal Court did provide for certain safeguards as regards the scope of the surveillance measure as argued by the Government (see § 43 above), given the overall lack of clarity of domestic law provisions on the matter, the Court is not satisfied that they were sufficient to constitute adequate and effective guarantees against abuse.

In particular, the Court observes that neither the above provisions nor the cited jurisprudence indicated any procedures to follow for the authorisation or supervision of the implementation of secret surveillance measures in the specific context of insurance disputes. Furthermore, in the absence of any details as regards the maximum duration of the surveillance measures or the possibility of their judicial challenge, insurance companies (acting as public authorities) were granted a wide discretion in deciding which circumstances justified such surveillance and for how long. It can thus not be said that the domestic law had set a strict standard for authorising the surveillance measure at issue (see, a contrario, Uzun, cited above, § 70).

Moreover, the said legal provisions equally remained silent on the procedures to be followed for storing, accessing, examining, using, communicating or destroying the data collected through secret measures of surveillance. It thus remained unclear where and how long the report containing the impugned footage and photographs of the applicant would remain stored, which persons would have access to it and whether she had any legal means of contesting the handling of the said report. The foregoing necessarily increased the risk of unauthorised access to, or disclosure of, the surveillance materials.

The Government further argued that the interference with the applicant's right to privacy by way of secret surveillance was relatively small in the light of the public interests at stake, namely the prevention of insurance fraud and, ultimately, ensuring the proper management of public funds. In the Government's view, this placed in context the need for clarity and precision of the legal basis of the surveillance in question. While the Court can agree that surveillance in the present case must be considered to interfere less with a person's private life than, for instance, telephone tapping, it nonetheless has to adhere to general principles on adequate protection against arbitrary interference with Article 8 rights as summarised above (see § 68 above; see also Uzun, cited above, §§ 66 and 72).

For the above reasons — and notwithstanding the arguably minor interference with the applicant's Article 8 rights — the Court does not consider that the domestic law indicated with sufficient clarity the scope and manner of exercise of the discretion conferred on insurance companies acting as public authorities in insurance disputes to conduct secret surveillance of insured persons. In particular, it did not, as required by the court's case-law, set out sufficient safeguards against abuse. The interference with the applicant's rights under Article 8 was not, therefore, ‘in accordance with the law’ and there has accordingly been a violation of Article 8 of the Convention.

In the light of the foregoing, it is unnecessary for the Court to go into an analysis of whether the measure complained of was also ‘necessary in a democratic society’.