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‘López Ribalda II’: hidden cameras, can they be used?

| News | Employment Law and Social Security

Juan Pascual analyses the problem of the hidden recording and the consequences that would result from the absolute non-observance of the duty of information

In recent years we have witnessed a constant comings and goings of judicial decisions of the European Court of Human Rights (ECtHR) on data protection matters which, fundamentally, give rise to extraordinary reviews by the Grand Chamber of the judgments handed down by the different sections of the Court.

On 9 January 2018, the ECtHR issued the López Ribalda and others versus Spain ("López Ribalda I") ruling, in which it was concluded that the plaintiffs had the right to be informed "expressly, precisely and unequivocally beforehand" of "the existence of a file or processing of personal data, of the purpose of the collection of such data and of the addressees of the information".

However, on 17 October 2019, the Grand Chamber of the ECtHR ruled again in the case of López Ribalda and others versus Spain (López Ribalda II) in which it rectified its judgement, considering that the Spanish courts made an appropriate balance between the right of the appellants to the protection of their data and the employer's interest in protecting their assets. Thus, the Grand Chamber postulated that the lack of prior information on the existence of hidden cameras was justified by reasonable suspicions that serious irregularities were being committed.

Scope of workers' right to information

This resolution is very relevant to deal with one of the most controversial issues and analyzed by judicial and scientific doctrine: the scope of workers' right to information, and consequent labour obligation in the field of work video-surveillance.

The problem of the hidden recording lies in the consequences that would result from the absolute non-observance of the duty of information. The respect of this duty in absolute terms -especially in those cases in which the occurrence of illicit acts has been verified, or even that there are founded suspicions about their authorship-, would suppose the elimination of all effectiveness of mechanisms such as hidden cameras, and whose problematic has been raised in other jurisdictional orders.

For this reason, López Ribalda II represents a radical change in the criteria previously established by the ECtHR, since it would allow the use of temporary hidden cameras -avoiding the duty to inform- if there are reasonable suspicions. However, despite this pronouncement, according to our internal legal system, it seems that the use of hidden cameras would not be allowed. This would be the case, for the following reasons:

a. The Constitutional Court (CT) has repeatedly pointed out that the duty of information would form part of the essential content of the fundamental right to data protection.

b. The national legislator would have liked, at least, the duty to provide information to be fulfilled with the information mark provided for in art. 22 -paragraph 4 of Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights (LOPD).

c. The López Ribalda II case interprets - since it is the law in force at the time the events occurred –

Organic Law 15/1999, of 13 December, on the protection of personal data - and not the current one.

Consequently, the legal operators would again be in a situation of legal uncertainty since CT and the LOPD would be clear about the impossibility of dispensing with the duty of information. For his part, López Ribalda II would advocate the legality of hidden cameras in certain exceptional cases. Therefore, in this context of insecurity, it would not be impossible for the legislator to evaluate the revision of the LOPD.

Private vote by three judges

Lastly, of particular interest is the particular vote cast by three judges of the ECtHR in López Ribalda II, which states that, in order to omit the duty to provide information, it would be necessary for a third party - for example, a judicial body - to verify the real existence of these "signs of serious non-compliance" in order to avoid them: (i) arbitrary investigations; and, (ii) that the employer has to justify the investigative measure implemented, after having carried out an act that may entail the violation of a fundamental right.

This option could be presented as the most guarantee for all parties since it would potentially provide greater legal security to the enormous existing casuistry. This is without prejudice to the possible difficulties that this alternative might encounter in its practical or material implementation, when the implantation of hidden cameras is subject to judicial authorization - prior to their installation - in response to reasonable suspicions that should be capable of being proven or accredited.

You can see the article in the following publication Actualidad Jurídica Aranzadi.

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