The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Although one may be familiar with criticisms of the EU’s self-contained approach to its own legal system, this case of fragmentation is not limited to the EU alone. In fact, in one of the more recent cases on the docket of the European Court of Human Right (ECtHR), it was the Court’s Grand Chamber that adopted a self-contained attitude towards the interpretation of the European Convention on Human Rights (ECHR). It did so by failing to account for EU rules concerning workplace surveillance which were relevant for the interpretation of the ECHR.

In López Ribalda and Others v. Spain (Applications nos. 1874/13 and 8567/13) (the Decision), a Spanish employer installed hidden CCTV cameras as part of an investigation into ‘inconsistencies between the stock level and the sales figures’ (§12 of the Decision). The employees were not informed about the existence of such cameras (§13 of the Decision). Subsequently, some of them were filmed while stealing (or while they were aiding other people who were stealing goods from the supermarket) and were dismissed (§§14-16 of the Decision). The dismissals were challenged in the Spanish courts as the evidence used for this was obtained through an act (covert video surveillance) which (allegedly) breached the applicants’ right to protection of privacy. However the Spanish courts rejected these claims. It was considered that the employer acted in a proportionate manner, as the measures were necessary, were limited in time and were focused on the supermarket’s checkout counters (§§19-39 of the Decision).

After their failure before the Spanish courts, the applicants brought a complaint before the ECtHR for breach of the right to private life. Initially, the Third Section of the Court found a violation of Article 8 of the ECHR:

‘the video surveillance carried out by the employer […] did not comply […] with the obligation to previously, explicitly, precisely and unambiguously inform those concerned about the existence and particular characteristics of a system collecting personal data. […] [T]he 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 […]’ [emphasis added] (§69).

The Grand Chamber’s decision

However, this judgement was reversed by the Grand Chamber: it found the measures of using video surveillance appropriate and proportionate (the Decision, §132). As regards the employer’s duty to inform his employees about the use of CCTV cameras, the Chamber found that his failure to act in this way was justified by ‘the existence of reasonable suspicion that serious misconduct has been committed’ and by ‘the extent of the losses’. Additionally, the Chamber considered the fact that there was ‘concerted action by several employees’ and that this created ‘a general atmosphere of mistrust in the workplace’. Moreover, there existed other remedies on which the applicants could have relied: the possibility to file a complaint with the Data Protection Authority (the Decision, §§134-135).

The Court’s reasoning, however, could have been different had it considered the provisions of the EU’s Directive 95/46/EC (the Data Protection Directive). The Directive was applicable in Spain at the moment of the impugned measures and it is now superseded by Regulation 2016/679 – the General Data Protection Regulation (GDPR). Both of them provide that the right to information (concerning the processing of data) can be restricted only through legislative measures. Spanish legislation did not contain any such exceptions at the moment the measures were undertaken by the employer (the Decision, Joint Dissenting Opinion of Judges De Gaetano, Yudkivska and Grozev, §4).

Why should the ECtHR give due regard to principles developed by EU institutions and applied outside the formal scope of the ECHR?

The first aspect which must be clarified is why should the ECtHR consider the Data Protection Directive and/or the GDPR in its interpretation of the ECHR’s Article 8. Formally, this is possible by virtue Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It mandates the interpreter of a treaty to ‘consider any relevant rules of international law applicable in the relations between the parties’.

Thus, two aspects must be proved: that the Data Protection Directive/GDPR contain rules of international law (1) and that such rules are relevant for interpreting Article 8 of the ECHR in cases such as the one mentioned here (2).

1. Are EU regulations and directives ‘relevant rules of international law’ under the meaning of the aforementioned VCLT provision? My argument is that they are: EU law must be seen as a whole, encapsulating both the treaties (primary law) and binding secondary acts such as regulations and directives (secondary law). The whole EU law edifice has been built on this fact. As such, denying the status of relevant rules to regulations and directives while accepting it for the treaties would entail a formal separation of treaties and regulations/directives which does not reflect the realities of EU law. This seems to be confirmed by the ECtHR’s case-law as well (Bosphorus v. Ireland, at § 150 read together with §§ 145-148).
2. Can the GDPR and the Data Protection Directive inform the interpretation of the ECHR’s Article 8 as regards workplace video surveillance? Without going in-depth into the whole debate of whether those rules must be applicable in the relations between all the parties to a treaty or only the ones concerning a dispute (a topic which has been discussed on this blog before and which concerned the ECtHR as well; for the response, which particularized the approaches taken towards the interpretation of Article 31(3)(c) of the VCLT, click here), I will limit myself to discussing the arguments in favour of the claim that the ECtHR should have interpreted Article 8 by considering the Data Protection Directive/GDPR as well.

Firstly, it is already settled in the case-law of the ECtHR that the Court must account for other rules of international law when interpreting the obligations contained in the ECHR, using the mechanism provided by the VCLT in Article 31(3)(c) (see, for instance, RMT v. the United Kingdom, § 76; X v. Latvia, § 92; or Demir and Baykara v. Turkey, § 85), no specific reference being made to the necessity of all the ECHR states being parties to a treaty used to inform the interpretation of the Convention.

Secondly, the Venice Commission’s (VC) Opinion on Video Surveillance by Private Operators in the Public and Private Spheres […] mentions that any regulation of video surveillance ‘shall at least follow the requirements laid down by Directive 95/46’. Prior to that, it refers to the fact that video surveillance undertaken for the purpose of preventing and controlling criminal offences ‘shall respect the requirements laid down by Article 8 of the ECHR’ (§ 99 of the Opinion). Although the VC does not issue formally binding decisions, its effects upon the ECtHR are undeniable: from the fact that the ECtHR constantly uses the VC’s opinions as a source of information (pp. 585-588) to the fact that both the ECtHR and the VC are Council of Europe bodies, one could hardly deny the relevance of the VC’s opinions in the context of the Strasbourg Court’s activity. As such, Directive 95/46 and the GDPR are indeed relevant acts for the purposes of interpreting the scope of the ECHR’s Article 8 when it comes to workplace surveillance. One would be hard pressed to find a more revealing statement of relevance than the one cited at the beginning of this paragraph. And as Panos Merkouris mentioned, the key to assessing the interpretative suitability of another rule of international law is, first and foremost, its relevance.

Perhaps the most obvious argument is based on the López Ribalda case itself: the Court, when referring to the ‘relevant European and international law’, mentions the VC’s opinion, the Data Protection Directive and the GDPR.

As such, would the result have been different had Directive 95/46 been used to inform the interpretation of the ECHR’s Article 8? It is hard to give a definite answer. But as the ECtHR confirmed, the right to information had a fundamental role to play in the context of employment relations (§131 of the Decision). Thus, it would have at least tipped the balance in favour of a decision similar to the one handed by the Third Section.