Procedure

1. The case originated in two applications [...] against the Kingdom of Spain lodged with the Court under Art 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms („the Convention“) by five Spanish nationals [...] on 28 December 2012 and 23 January 2013 respectively. [...]

3. The applicants submitted that the decision by which their employer had dismissed them had been based on video-surveillance implemented in breach of their right to respect for their private life, as guaranteed by Art 8 of the Convention, and that the domestic courts had failed in their obligation to ensure the effective protection of that right. Under Art 6 of the Convention, they complained about the admission in evidence during the proceedings of the recordings obtained by means of the videosurveillance. Under the same provision, the third, fourth and fifth applicants further complained of the acceptance by the domestic courts of the settlement agreements that they had signed with their employer.

4. The applications were allocated to the Third Section of the Court [...]. By a judgment of 9 January 2018 a Chamber of that Section, composed of Helena Jäderblom, President, Luis López Guerra, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, Jolien Schukking, judges [...] decided to join the applications, declared them partly admissible and found a violation of Art 8 of the Convention and no violation of Art 6. The dissenting opinion of Judge Dedovwas appended to the Chamber judgment.

5. On 27 March 2018, under Art 43 of the Convention, the Government requested the referral of the case to the Grand Chamber. On 28 May 2018 the panel of the Grand Chamber granted that request.

[...]

7. The applicants and the Government each filed further written observations [...]. The European Trade Union Confederation (ETUC), which had been granted leave to submit written comments in the Chamber proceedings [...], had submitted such comments before the Chamber but did not make any additional comments before the Grand Chamber.

8. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 November 2018 [...]. [...]

The circumstances of the case

10. At the time of the relevant events, the applicants were all working in a supermarket of the M. chain situated in Sant Celoni (Barcelona province). The first three applicants were cashiers, while the fourth and fifth applicants were sales assistants behind a counter.

11. From March 2009 onwards the supermarket‘s manager noticed some inconsistencies between the stock level and the sales figures. In the following months he identified losses of 7,780 € in February, € 17,971 in March, € 13,936 in April, € 18,009 in May and € 24,614 in June.

12. In the context of an internal investigation to shed light on the losses, on 15 June 2009 the manager installed CCTV cameras, some visible and others hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. Three tills were covered by the range of each camera, including the areas in front of and behind the counters. The exact number of tills being monitored was not stated by the parties; the documents in the file show that at least four tills were filmed. 13. During a meeting the supermarket‘s staff were informed of the installation of the visible cameras on account of the management‘s suspicions about thefts. Neither the staff nor the staff committee were informed of the hidden cameras. Beforehand, in 2007, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked but the parties did not indicate its location or precise content.

14. On 25 June 2009 the management of the supermarket informed the union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. The representative watched the recordings. 534

15. On 25 and 29 June 2009 all the workers suspected of theft were called to individual interviews. Fourteen employees were dismissed, including the five applicants. Prior to each interview, the applicants and other employees concerned had a meeting with the union representative, who told them she had watched the video recordings. During the meeting a number of employees admitted that they had been involved in the thefts with other colleagues.

16. During the individual interviews, which were attended by the manager, the legal representative of the company M. and the union representative, the employees concerned were notified of their dismissal on disciplinary grounds with immediate effect. The dismissal letters given to the applicants indicated that the hidden CCTV cameras had filmed them, on several occasions between 15 and 18 June 2009, helping customers or other supermarket employees to steal goods and stealing goods themselves. Among the facts, the letters stated that the first three applicants, who worked at the tills, had allowed customers and colleagues to go to the cash till and leave the shop with goods they had not paid for. They added that those applicants had scanned items presented at the checkout by customers or colleagues and had then cancelled the purchases, with the result that the goods had not been paid for. They explained that a comparison between the goods actually taken away by customers and the sales receipts had made it possible to prove this. As to the fourth and fifth applicants, the cameras had reportedly caught them stealing goods with the help of their colleagues at the tills. According to the employer, these acts constituted a serious breach of the obligations of good faith and loyalty required in the employment relationship and justified the termination of the contract with immediate effect.

17. In addition, the third, fourth and fifth applicants signed an agreement entitled „settlement agreement“ (acuerdo transaccional) with the company‘s legal representative. These agreements were cosigned by the union representative. Under the agreements, the two parties confirmed the termination of the employment contract by the employer and declared that they had reached an agreement in order to avoid uncertainty as to any future legal dispute. The applicants acknowledged the thefts of the goods, as set out in the dismissal letters, and endorsed the employer‘s decision to terminate their employment contracts. The company undertook not to bring criminal proceedings against the employees. A final settlement of outstanding accounts was attached to the agreement and the parties declared that they waived any claims against each other under the employment contract.

18. At no time before their dismissal, either during the meeting with the union representative or during their individual interviews, were the applicants able to view the recordings from the CCTV cameras.

Judicial proceedings brought by the applicants

19. On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no. 1 („the Employment Tribunal“). The same day the other four applicants brought similar proceedings before the Employment Tribunal.

20. The applicants objected in particular to the use of the covert video-surveillance, arguing that it had breached their right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings.

21. As regards the proceedings brought by the third, fourth and fifth applicants, the employer opposed them, relying on the settlement agreements signed by them. Those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative.

22. [...] The CCTV recordings were produced in evidence by the employer.

23. On 20 January 2010 the Employment Tribunal issued two judgments dismissing the applicants‘ actions, declaring their dismissals fair.

24. As regards the first and second applicants, who had not signed any settlement agreements, the tribunal took the view that it first had to ascertain whether the recordings obtained by the hidden cameras could constitute lawful evidence, given that, pursuant to section 11 of the Law on the Judiciary and Article 287 of the Code of Civil Procedure, any evidence obtained in breach of a fundamental right had to be excluded.

25. In this connection, the Employment Tribunal found that [...] any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their „human dignity“ and thus respected their fundamental rights. It referred in this connection to the case-law of the Constitutional Court. [...] The Constitutional Court had found that an employer‘s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees‘ right to their privacy and to the protection of their image. It had explained that the lower court was supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer‘s measures. In the case at issue, it had found that the covert video-surveillance measure had been proportionate and had not breached the employee‘s fundamental right to privacy guaranteed by Art 18 of the Constitution given that, first, it was justified by reasonable suspicions of serious misconduct; that, secondly, it was appropriate to the aim pursued, namely to verify whether the employee was actually committing misconduct and to adopt sanctions if necessary; that, thirdly, it was necessary, because the recordings would provide evidence of the misconduct in question; and that, fourthly, it was proportionate, because the monitoring was limited in space and in time to what was sufficient to fulfil its aim. The court had, moreover, considered it not to be constitutionally pertinent to examine 535 the question whether the employees or the staff committee had been informed beforehand of the installation of the video-surveillance. It had further taken the view that the right to effective judicial protection under Art 24 of the Constitution had not been breached by the admission in evidence of the recordings thus obtained, especially as the decision had also been based on other evidence.

26. Transposing the principles thus developed by the Constitutional Court in a similar case, the Employment Tribunal found that there had been no breach of the applicants‘ right to respect for their private life and that the recordings thus constituted valid evidence. [...]

28. In the tribunal‘s view, the applicants‘ conduct amounted to a breach of the principle of good faith and entailed the employer‘s loss of trust, thus rendering their dismissals lawful.

29. As regards the third, fourth and fifth applicants, the Employment Tribunal examined their arguments relating to the invalidity of the settlement agreements with their employer. It took the view that there was no evidence of any form of coercion or fraudulent intent on the part of the employer. It concluded from the union representative‘s testimony that the applicants had confessed to the facts during a meeting with her, thus rendering it plausible that they had signed the agreements in order to avoid criminal proceedings. It added that the failure of some employees in the same situation as the applicants (for example, the first and second applicants) to sign such an agreement confirmed the absence of any threat or duress. It also noted that the settlement agreements had no unlawful basis and could be seen as a means of settling a dispute by means of reciprocal concessions. [...]

31. The applicants appealed before the High Court of Justice of Catalonia („the High Court“) [...]. In her appeal, the first applicant expressly complained of a breach of the obligation of prior notification, as provided for in section 5 of the Personal Data Protection Act. In her view this should have been taken into account in the examination of the proportionality of the video-surveillance measure.

32. In judgments of 28 January and 24 February 2011 the High Court upheld both first-instance judgments.

33. Relying on its own case-law, on that of other courts and on that of the Constitutional Court [...], the High Court took the view that the video-surveillance measures taken by the employer [...] did not require, in the light of section 6 (2) of the Personal Data Protection Act, the prior consent of the employees concerned but had to be subjected to a proportionality test according to the criteria laid down by the Constitutional Court. It took the view that the measure at issue in the present case satisfied those criteria because it was justified by the existence of suspicions of misconduct, appropriate to the aim pursued, necessary for the fulfilment of that aim because a more moderate measure would not have been capable of fulfilling it, and proportionate because the recordings were limited, in time and space, to what was necessary for the purpose of verifying the suspicions. [...]

The High Court further held that the failure to notify employees and staff representatives could probably be explained by the fact that „the company rightly feared that knowledge of the monitoring system would defeat its purpose“.

34. Without expressly mentioning section 5 of the Personal Data Protection Act, the High Court noted that the question of the employer‘s compliance with the obligation of prior notification was one of ordinary legality and that the failure to inform employees exposed the employer to an administrative sanction but had no impact on the admissibility of the evidence where, as in the present case, the video-surveillance measure was justified and proportionate. [...]

38. After examining the other grounds of appeal put forward by the applicants in support of their claims, the High Court concluded that the dismissals were lawful and upheld the judgments handed down at first instance.

39. The applicants brought appeals on points of law, which were declared inadmissible [...]. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible [...], owing to the „non-existence of a violation of a fundamental right“.

40. On 31 July 2009, after the applicants and other employees had appealed against their dismissals before the Employment Tribunal, the employer filed a criminal complaint against fourteen employees, including the five applicants. Criminal proceedings were opened against them. On 15 July 2011, finding that the investigation had not established that there had been any concerted action between the defendants in committing the offences, and that the value of the goods stolen by each defendant had not exceeded € 400, the investigating judge decided to reclassify the charges as a minor offence (falta). In a decision of 27 September 2011 the judge declared that the prosecution was timebarred on account of the statutory limitation of proceedings for that type of offence.

Relevant domestic law and practice

Relevant procedural provisions

44. Section 11 of Organic Law no. 6/85 of 1 July 1985 on the Judiciary provides as follows:

„1. The principle of good faith must be complied with in all proceedings. Evidence obtained, directly or indirectly in violation of fundamental rights or freedoms will be excluded. [...]“

Legislation regarding the protection of personal data

45. Organic Law no. 15/1999 on the protection of personal data (Ley Orgánica de protección de datos de carácter personal – the „Personal Data Protection Act“), as in force at the material time, was enacted on 13 December 1999 by transposing Directive 95/46/EC and entered into force on 14 January 2000. Its aim was to safeguard the fundamental rights of individuals in connection with the processing of personal data, and more specifically their right to respect for their honour and their personal and family privacy [...]. It applied to the collection of personal data, defined as any information concerning identified or identifiable individuals recorded 536 on a physical medium which may be subject to processing, and also covered the future usage of such data for public or private purposes [...].

46. The Spanish Data Protection Agency, created by the Act, is the authority responsible for the supervision of its application. In that capacity it is entitled to carry out inspections, examine complaints and impose penalties for contraventions of the Act, namely fines of up to € 600,000 [...].

47. The provisions of the Act concerning information and the consent of those concerned by the collection of their personal data, as applicable in the present case, read as follows:

Section 5 – Right to information on the collection of data

„1. Data subjects whose personal data are requested must be previously, explicitly, precisely and unambiguously informed of the following:

1. the existence of a personal data file or the fact that the data will be processed, the purpose thereof and the recipients of the information;

2. the obligatory or optional nature of their response to the questions asked;

3. the consequences of providing or refusing to provide the data;

4. the existence of rights of access, rectification, erasure and objection;

5. the identity and address of the controller or, as appropriate, his representative.“

[...]

Alleged violation of Art 8 of the Convention

77. The applicants argued that their employer‘s decision to dismiss them had been based on recordings obtained by means of video-surveillance in their workplace, in breach of their right to respect for their private life, and that, by refusing to declare their dismissal null and void, the domestic courts had failed in their duty to protect that right. [...]

The Chamber judgement

78. In its judgment of 9 January 2018 the Chamber found that Art 8 of the Convention was applicable in the present case. As the disputed video-surveillance measure had been implemented by a private party, it examined the complaint in terms of the State‘s positive obligations and sought to ascertain whether the national authorities had struck a fair balance between the applicants‘ right to respect for their private life, on the one hand, and their employer‘s interest in protecting its rights in connection with the organisation and management of its property, on the other.

79. The Chamber noted that, while the video-surveillance had been set up on account of legitimate suspicions of theft, it had been broad in scope – not being limited in time, affecting all the employees working at the tills and covering all working hours – and had breached the obligation under domestic law to give prior information, to those persons who were concerned by the collection and processing of their personal data, of the existence, purpose and implementation of the measures. Having regard to those factors, the Chamber did not share the opinion of the domestic courts as to the proportionality of the video-surveillance measure taken by the employer. It was of the view, in particular, that the employer‘s rights could have been secured by informing the applicants, even in a general manner, of the installation of a videosurveillance system.

80. Consequently, the Chamber found that the domestic courts had failed to strike a fair balance between the applicants‘ right to respect for their private life and the other interests at stake, and that there had thus been a violation of Art 8 of the Convention.

[...]

The Court‘s assessment

87. 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 [...]). 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, [...] and Von Hannover v. Germany [no. 2] [GC], nos. 40660/08 and 60641/08, § 95 [...]).

88. 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 [...]). It does not exclude professional activities in that connection (see Fernández Martínez v. Spain [GC], no. 56030/07, § 110 [...]; Köpke v. Germany (dec.), no. 420/07 [...]; Bărbulescu, cited above, § 71; Antovic and Mirkovic v. Montenegro, no. 70838/13, § 42 [...]; and Denisov, [...] § 100) or activities taking place in a public context (see Von Hannover [no. 2], [...] § 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 [...]; Perry v. the United Kingdom, no. 63737/00, § 36 [...]; and Von Hannover [no. 2], [...] § 95).

89. 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 Antovic and Mirkovic, 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.537Belgium, nos. 32200/96 and 32201/96 [...] 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 [...]; Perry, [...] §§ 38 and 41; and Vukota-Bojic v. Switzerland, no. 61838/10, §§ 55 and 59 [...]). 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 [...].

90. In order to determine whether Art 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, [...] § 40; Köpke [...]; and Vukota-Bojic, [...] §§ 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, [...] §§ 40-41; and Vukota-Bojic, [...] § 56).

91. As regards, more specifically, the issue of videosurveillance 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 [...]). The non-covert videosurveillance 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 Antovic and Mirkovic, [...] §§ 44-45).

92. 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 videosurveillance, 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.

93. 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 [...]. 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 [...]. 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.

94. 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.

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

96. 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 Art 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. [...]

101. 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 nonexhaustion of domestic remedies 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. [...]

107. The ETUC, intervening as a third party, expressed its concern that States might not sufficiently protect the privacy of workers in the workplace. It 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. In its view, 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, those concerned had to be informed. 538

108. The ETUC stressed that the right to be informed of the collection of personal data was expressly recognised in domestic law under section 5 (1) of the Personal Data Protection Act. Highlighting 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 in the case of video-surveillance in the workplace, it concluded that the right of the data subject to be informed prior to the processing of his or her personal data was to be regarded as a right derived from Art 8 of the Convention, constituting a procedural safeguard. Moreover, in situations where it was not required to give prior information to the employees themselves, the notification and consultation of their representatives would be essential.

109. 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.

110. The Court reiterates that although the object of Art 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, [...] and Von Hannover [No. 2], [...] § 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 Art 8 of the Convention (see Bărbulescu, [...] § 110, and Schüth v. Germany, no. 1620/03, §§ 54 and 57 [...]).

111. 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 Art 8 of the Convention (see Bărbulescu, [...] § 110; Köpke [...]). 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, [...] and Bărbulescu, [...] § 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 [...].

112. The choice of the means calculated to secure compliance with Art 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], [...] § 104; Söderman, [...] § 79; and Bărbulescu, [...] § 113).

113. The Court has already held that, in certain circumstances, the fulfilment of positive obligations imposed by Art 8 requires the State to adopt a legislative framework to protect the right at issue (see [...] M.C. v. Bulgaria, no. 39272/98, § 150, [...] concerning cases of sexual assault on minors; and Codarcea v. Romania, no. 31675/04, §§ 102-04, [...] 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, [...] § 150). In respect of less serious acts between individuals which may affect the rights protected under Art 8, the Court takes the view that Art 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, [...] §§ 86-91; and on the right to the protection of one‘s image, Von Hannover [no. 2], [...] §§ 95-126 [...]).

114. As regards, more specifically, the monitoring of employees in the workplace, the Court has taken the view that Art 8 leaves it to the discretion of States to decide whether or not to enact specific legislation on video-surveillance (see Köpke [...]) or the monitoring of the non-professional correspondence and other communications of employees (see Bărbulescu, [...] § 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, [...] § 120, and Köpke [...]).

115. 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 Art 8 of the Convention (see Bărbulescu, [...] § 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 [...]. 539

116. 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:

1. Whether the employee has been notified of the possibility of video-surveillance measures being adopted by the employer and of the implementation of such measures. While in practice employees may be notified in various ways, depending on the particular factual circumstances of each case, the notification should normally be clear about the nature of the monitoring and be given prior to implementation.

2. The extent of the monitoring by the employer and the degree of intrusion into the employee‘s privacy. In this connection, the level of privacy in the area being monitored should be taken into account, together with any limitations in time and space and the number of people who have access to the results.

3. Whether the employer has provided legitimate reasons to justify monitoring and the extent thereof. The more intrusive the monitoring, the weightier the justification that will be required.

4. Whether it would have been possible to set up a monitoring system based on less intrusive methods and measures. In this connection, there should be an assessment in the light of the particular circumstances of each case as to whether the aim pursued by the employer could have been achieved through a lesser degree of interference with the employee‘s privacy.

5. The consequences of the monitoring for the employee subjected to it. Account should be taken, in particular, of the use made by the employer of the results of the monitoring and whether such results have been used to achieve the stated aim of the measure.

6. Whether the employee has been provided with appropriate safeguards, especially where the employer‘s monitoring operations are of an intrusive nature. Such safeguards may take the form, among others, of the provision of information to the employees concerned or the staff representatives as to the installation and extent of the monitoring, a declaration of such a measure to an independent body or the possibility of making a complaint.

117. 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.

118. In the present case, the positive obligations imposed on the State by Art 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.

119. 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. [...] Moreover, the applicable rules of procedure required the domestic courts to exclude any evidence obtained in breach of a fundamental right. [...]

120. 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, 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.

121. 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.

122. 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.

123. 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 540 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.

124. 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, [...] 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 [...]. As to the fourth and fifth applicants, the CCTV cameras filmed them whenever they passed through the checkout area.

125. 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. 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.

126. 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, [...] 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.

127. 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 videosurveillance 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, [...] §§ 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).

128. 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 [...]. 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.

129. 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.

130. 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‘ 541 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.

131. 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 videosurveillance 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. 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. 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.

132. 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 videosurveillance 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.

133. 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.

134. However, in the specific circumstances of the present case, having regard particularly to the degree of intrusion into the applicants‘ privacy 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 [...]). 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.

135. 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 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.

136. 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, [...] § 116).

137. 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 Art 8 of the Convention such as to overstep their margin of appreciation. Accordingly, there has been no violation of that provision. 542

Alleged violation of Art 6 of the Convention

138. Under Art 6 of the Convention, the applicants complained that recordings obtained in breach of their right to respect for their private life had been admitted and used in evidence by the employment courts.

139. The third, fourth and fifth applicants further argued that the acknowledgment of the validity of the settlement agreements that they had signed, allegedly following deceitful manipulation by the employer, had also breached their right to a fair hearing. [...]

149. The Court reiterates that its only duty, in accordance with Art 19 of the Convention, is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Art 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law [...]. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a court of fourth instance and will not therefore question under Art 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable [...].

150. It is therefore not the role of the Court 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. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found. [...]

154. The Court points out that it has not found a violation of Art 8 of the Convention on account of the video-surveillance to which the applicants were subjected. 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. 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. [...]

158. 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.

[...]

161. 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 Art 6 on this point either.

For these reasons, the Court

Holds, by fourteen votes to three, that there has been no violation of Art 8 of the Convention.

Holds, unanimously, that there has been no violation of Art 6 of the Convention on account of the use in evidence of the recordings obtained by means of video-surveillance.

Holds, unanimously, that there has been no violation of Art 6 of the Convention on account of the acceptance of the settlement agreements signed by the third, fourth and fifth applicants.