R (on the application of Edward Bridges) v The Chief Constable of South Wales [2019] EWHC 2341 (Admin)

Case Note

Introduction

In Bridges, an application for judicial review, the UK High Court (Lord Justice Haddon-Cave and Mr. Justice Swift) considered the lawfulness of policing operations conducted by the South Wales Police force (“SWP”) which utilised Automated Facial Recognition (“AFR”) technology.  The Court rejected Mr Bridges’ allegations that the SWP’s conduct was unlawful as contrary to the European Convention on Human Rights (“ECHR”), Article 8, the Data Protection Acts 1998 and 2018 (“DPA 98 and 18”), and the Equality Act 2010.  In this blog post we consider several key aspects of the case.

Continue Reading UK Court upholds police use of automated facial recognition technology

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its ruling on appeal in the case of Bărbulescu v. Romania, concerning alleged unlawful workplace monitoring of Mr. Barbulescu’s private communications.

Overturning the ECtHR’s prior ruling in the case (covered by Inside Privacy here), the Grand Chamber held that Romanian courts had not adequately and fairly weighed up the competing interests of Mr Barbulescu and his employer.  That defect of justice meant that Romania had failed to proactively protect Mr Barbulescu’s right to privacy, as required by its membership of the European Convention on Human Rights.

The Grand Chamber held that Mr Barbulescu’s right to privacy extended to his workplace, despite his private use of a work computer constituting a breach of his rules of employment.  The Grand Chamber held that while privacy in the workplace can be restricted “as necessary,” “an employer’s instructions cannot reduce private social life in the workplace to zero,” since the right to privacy does not necessarily depend on an individual’s reasonable expectations, and can be enjoyed in public and in the workplace, notwithstanding prohibitions and warnings given to the individual.  A fulsome balancing exercise was therefore required in cases such as these.

The Grand Chamber underlined that provided national courts undertake an adequate balancing exercise, they have some discretion as to the actual result (i.e. whether the employer’s or employee’s rights prevail in a given case).  Similar discretion is also enjoyed by national legislators and constitutions when setting underlying rules on workplace privacy, provided such rules – and a means to enforce them – are actually in place.

Nevertheless, the ruling states that workplace monitoring must always be limited to what is necessary for a legitimate purpose, and should be accompanied by a range of safeguards, normally including prior notice to employees – particularly when the content of communications is concerned.
Continue Reading New Ruling in European Employee Monitoring Case

On January 12, 2016, the European Court of Human Rights (ECtHR) ruled that an employer who had monitored an employee’s private communications during working hours had not breached the employee’s right to privacy (under Article 8 of the European Convention on Human Rights).

This judgment will influence how other European national courts and regulators view similar cases involving employer monitoring of employee private communications. However, the full scope of the judgement remains somewhat unclear; in particular, it remains unclear whether the ECtHR would apply similar logic if the monitored communications had been carried out through a personal account, rather than a professional one.  Employers should also take note that the judgment emphasizes the need for employer monitoring policies to be reasonable and proportionate.  The judgment is available in full here.
Continue Reading European Court of Human Rights Rules That Employers Can Monitor Employee Private Communications