Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
- The recognition of the right to privacy continued to evolve and in 1995 the EU adopted the Data Protection Directive ("95/46/EC, the "Directive"), whose purpose was to regulate the protection of the right to privacy and the security of personal information uniformly in the EU countries. Indeed, in many countries, the right to privacy has begun to receive a clear regulatory framework, such as the German Federal Data Protection Act. The French Data Protection Act (Loi Informatique et Libertés) and the British Law (Data Protection Act (1998). Implementation has led to the creation of National Data Protection Authorities (DPAs) in each country.
- With regard to privacy in the workplace, in 1992 the European Court of Human Rights recognized that Article 8 of the Convention gives rise to an obligation on the employer to protect the employee's right to privacy (Niemietz v. Germany, App. 13710/88, 16 Eur. H.R. Rep. 97 (1992)):
"The Court considers that it would be too restrictive to limit the notion of 'private life' under Article 8 to an ‘inner circle’ ... It is clear that a person’s professional or business activities may also fall within the scope of 'private life' in certain circumstance"
- In 2003, the European Court of Justice (Rechnungshof v. Österreichischer Rundfunk and Others, Case C-465/00, ECLI:EU:C:2003:294, 2003 E.C.R. I-04989.) emphasized the principles of necessity and proportionality in the processing of employees' personal data. In 2007, a judgment that dealt with the monitoring of an employee's email and phone calls (Copland v. United Kingdom, App. 62617/00, 45 Eur. H.R. Rep. 37 (2007), clarified that tracking and monitoring an employee's information without his knowledge constitutes a violation of Article 8 ofthe ECHR.
- Regarding security cameras, the European Court of Justice ruled in 2014 (František Ryneš v. Úřad pro ochranu osobních údajů, Case C-212/13, ECLI:EU:C:2014:2428, 2014 E.C.R. I-0000..) Because monitoring by security cameras is considered the processing of personal information and is therefore subject to the Directive.
- 3.II. Placing cameras in the workplace, between the approach in the U.S. and Europe:
- As noted, in American law, recognition of an infringement of employees' privacy depends on their reasonable expectation of privacy, and therefore the tendency in case law is based on two main pillars: the nature of the place being monitored, and the employee's knowledge. Accordingly, to the extent that the employer informs the employees about the existence of cameras, the case law will tend to reject the employee's claim (see, for example: Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 211 P.3d 1063, 97 Cal. 3d 274 (2009): "While employees generally have a reasonable expectation of privacy in nonpublic areas of the workplace, the employer’s use of surveillance was narrowly tailored and justified by legitimate business concerns."). The only clear exception to this is the placement of cameras in clearly private places, such as changing rooms, toilets or rest rooms, and there is no reasonable expectation of privacy in public places (see, for example, Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174 (1st Cir. 1997).
- In contrast, the European Court of Human Rights recognizes the legitimate need for an employer to install cameras in order to monitor its employees, but recognition of this prerogative does not necessarily mean that the installation of cameras will be legal in every situation:
"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." (Lopez Ribalda v. Spain, App. Nos. 1874/13 & 8567/13, ¶ 122, 2019 Eur. Ct. H.R. 752 (Grand Chamber).