A Human Rights Approach: Beyond Privacy?

One outstanding question is whether a human rights-based approach can offer anything more than is currently contemplated under legislation. At present, the assumption seems to be that privacy protections are the only game in town, but it is argued here that recourse to freedom of speech and freedom of association may be more fruitful in securing a capability-oriented outcome.

Privacy, consent, and proportionality

This is not to say that the scope for protection of privacy should be overlooked; not least because, as has been observed already, it casts doubt on whether mere consent to workplace surveillance is sufficient if such surveillance is disproportionate in terms of the legitimate aims pursued by the employer. This is an issue which has obviously arisen where a privacy right is imported into UK law by virtue of the Human Rights Act 1998 (HRA), which gives legislative effect to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (also known as the European Convention on Human Rights 1950 or ‘ECHR’). Notably, prior to the enactment of the HRA, arguments made relating to privacy in respect of trade union membership ‘met with short shrift’,^[1] but this may no longer be the case.

Article 8 of the ECHR provides that:

• 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
• 2. 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.

What is crucial for our purposes is the explicit recognition of right to respect for ‘correspondence, which is what workers are seeking in an ICT context in terms of emails and other messages which are posted on websites. Paragraph 2 does offer the potential for limitations in accordance with ‘the rights and freedoms of others, which must presumably be taken to include the right of an employer to defend their right to property under Article 1 of Protocol No. 1 to the ECHR. However, any such constraint must be proportionate.^[2]

There have been successful claims made under Article 8, particularly against public employers in the UK. Some of the most notable have been concerned with sexual behaviour or identity.^[3] Others have indicated that covert surveillance, without detection of a criminal act at stake, is inappropriate.^[4] One case which highlighted the issues arising regarding a worker’s behaviour in the digital era was Pay v UK.^[5]

The case of Pay concerned ‘affiliative’ behaviour in the context of new technologies, although not that so much concerned with worker voice inside the workplace as sexual conduct outside. Pay was an employee of the Lancashire Probation Service. He had been dismissed for being a director of an organization ‘Roissy’ that operated a website (registered to Pay’s address), which advertised making and selling items used in bondage, domination, and sadomasochism (‘BDSM’) and the organizer of BDSM events and performances. The website had placed photographs of Pay and others performing BDSM acts which had taken place at a local private members’ club. This was not illegal conduct, but conduct which could cause embarrassment to Pay’s employer. Pay denied that he had placed these pictures on the website and it was accepted that he had already notified his employer of his connection to Roissy. The European Court of Human Rights reversed the finding of the UK court that privacy under Article 8 was not engaged here. The internet was not to be treated as a ‘public’ space. Sexual life was one of a number of ‘important elements of the personal sphere protected by Article 8’; further, the fact that private behaviour was recorded by others and displayed over the web did not make it any the less private. The Court also made the following observation, which is arguably significant for the future protection of ‘voices at work’, namely that Article 8 also protects:

the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’.

Much turned on what could be regarded, on the facts, as a ‘reasonable expectation of privacy, However, in this particular case, ‘given in particular the nature of the applicant’s work with sex offenders and the fact that the dismissal resulted from his failure to curb even those aspects of his private life most likely to enter into the public domain’, the Court did not consider that the measures taken against Pay were disproportionate.

The Court’s approach in Pay seems to support the assertions of academic commentators on the nature of the right to privacy, which they see less as a matter of maintaining personal secrecy, but pursuing communication and relationships. For example, Oliver understands privacy as not just ‘freedom from’ interference but ‘freedom to’ engage democratically: ‘Privacy allows individuals to develop their ideas before “going public”, and can be described as essential to democratic government due to the way in which it fosters and encourages moral autonomy.’⁸² Further, Michael Ford has advocated an approach taken previously by the Court to privacy in Niemitz v Germany,⁸³ such that privacy is not solely concerned with an ‘inner circle’ within which an individual leads some kind of protected existence, but also must ‘comprise to a certain degree the right to establish and develop relationships with other human beings’.⁸⁴ In this sense, the Court seems to offer scope for privacy rights to be connected to a right to associate or affiliative action, which suggests opportunities for more stringent control of employers’ surveillance of communications in the ICT workplace.

The problem with the judgment in Pay is the mention of what may be regarded as a ‘reasonable expectation of privacy’. As Oliver and Ford explain, this notion creates a kind of perverse incentive that the more that an employer makes explicit their surveillance of workers’ behaviour, the less there may be a ‘reasonable expectation’ of privacy.⁸⁵ This is a concern which stems from the frequent use of this phrase in the context of US Constitutional jurisprudence. There is no explicit right to privacy under the US Constitution but, since Griswold v Connecticut,⁸⁶ such an entitlement has been acknowledged and protected by the US Supreme Court. The most recent Supreme Court judgment concerning protection of privacy in the context of new technologies is that of City of Ontario v Quon.^{[6] [7] [8] [9] [10] [11]}

Quon concerned an action for breach of privacy by a former police officer in relation to personal use of text messages at work on a ‘pager’ issued by City of Ontario Police Department (OPD). There was a broader computer and internet policy adopted by the OPD that ‘the city reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice’, which the OPD had made clear to employees would include text messaging. On appeal to the US Supreme Court, Justice Kennedy (giving the leading judgment) was reluctant to lay down general principles relating to use of new technology:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.^[12]

He preferred instead to address the case in a more narrow fashion. On this basis he concluded that Quon had only a limited expectation of privacy, given his knowledge of the employer’s policy, and that the search of messages (covering only the last two-month period and redacting texts sent out of work) was reasonable. This cautious approach attracted some criticism from Justice Scalia who argued that ‘the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees’ employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers’ and considered that the court should provide greater guidance on ‘privacy expectations for emerging technologies’: ‘ “The times-they-are-a-changin” is a feeble excuse for disregard of duty.’^[13] Notably, comment in the Harvard Law Review also expressed disappointment at the narrow scope of the judgment.^[14] What Quon does however suggest is that an employer is best protected from a privacy-related action when there is a workplace policy regarding ICT to which the worker can be said to have ‘consented’ (although what we regard as sufficient consent arguably remains an ongoing challenge) and that the surveillance will have to be proportionate to a legitimate interest of the employer.

There has also been one recent judgment of the European Court of Human Rights concerning workplace surveillance, which seems to confirm that this is also likely to be the approach of that court. Kopke v Germany^[15] concerned the covert video surveillance of an employee working in a supermarket’s drinks department, following irregular till receipts. Kopke was shown by the video to have taken money from the tills which she hid in her clothes. The Court was satisfied that a video recording made at her workplace ‘without prior notice on the instruction of her employer’ affected her ‘private life’ under Article 8. Moreover, Article 8 did not merely ‘compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life’.^[16] It was stated that ‘in certain circumstances, the state’s positive obligation under art. 8 is only adequately complied with if the state safeguards respect for private life in the relations of individuals between themselves by legislative provisions providing a framework for reconciling the various interests which compete for protection in the relevant context’.^[17] Yet, in this case, the employer’s interference with Kopke’s privacy was justified under Article 8(2), with reference to the employer’s entitlement to its property rights under Article 1 of Protocol No. 1 to the ECHR.^[18] The requirement of proportionality was satisfied because ‘there had not been any equally effective means to protect the employer’s property rights’ which would have ‘interfered to a lesser extent with the applicant’s right to respect for her private life’.^[19] The ‘public interest in the proper administration of justice’ was also taken into account.^[20] The judgment did however contain the following obiter statement akin to that of Kennedy J in Quon: ‘The competing interests concerned might well be given a different weight in the future, having regard to the extent to which intrusions into private life are made possible by new, more and more sophisticated technologies.’^{[21] [22] [23]}

This judgment perhaps places a more stringent obligation on employers to justify their conduct than that acknowledged to date in the UK. Examples include the findings of the Scottish Employment Appeal Tribunal in McGowan v Scottish Water⁹⁸ where it was held that film surveillance of an employee’s home to see how many times an employee left his house to assess the validity of his worksheets was defensible, as the employer was entitled to protect its assets; and Fairstar Heavy Transport NV v Adkins and Anor" when it was found by the Court of Appeal that an employee had an obligation to surrender emails and other documents stored on a home computer in England in relation to the employer’s business.

• [1] Blackpool and the Fylde College v NATFHE [1994] IRLR 227; discussed by McColgan 121 (n 52).
• [2] Mantouvalou 938 (n 46).
• [3] App Nos 33985/96 and 33986/96 Smith and Grady v UK (1999) 29 EHRR 493. See for discussion,McColgan 135-40 (n 52).
• [4] Halford v UK (1997) 24 EHRR 523; [1997] IRLR 471, at para. 45; cf Kopke v Germany (1992) EHRR 97at 111, para. 29.
• [5] App No 32792/05 Pay v UK [2009] IRLR 139.
• [6] Oliver 323 (n 52). 83 (1992) EHRR 97 at 111, para. 29. 84 See Ford 139 (n 36).
• [7] 85 Oliver 336 (n 52) and Michael Ford, Surveillance and Privacy at Work (London: Institute of Employment
• [8] Rights) 50.
• [9] 86 Griswold v Connecticut, 381 U.S. 479, 486 (1965), applied in O’Connor v Ortega, 480 U.S. 709, 714-19
• [10] (1987), discussed in Fiore and Weinick 533 ff (n 3).
• [11] City of Ontario v Quon, 130 S.Ct. 2619, 560 U.S.
• [12] City of Ontario v Quon, per Kennedy J at 2628-30 (n 87). Discussed by Noyce 51 (n 11).
• [13] City of Ontario v Quon, per Scalia J at 2635 (n 87).
• [14] ‘Leading Cases: Constitutional law—Fourth Amendment—Reasonable Expectation of Privacy’ (2010)124 Harv L Rev 179 at 188: ‘Subsequent cases involving Fourth Amendment privacy rights in the digitalrealm are inevitable, and the Court should prepare itself to address those issues more definitively.’
• [15] App No 420/07, Judgment of 5 October 2010—admissibility decision.
• [16] App No 420/07, Judgment of 5 October 2010, para. 41 (n 91).
• [17] App No 420/07, Judgment of 5 October 2010, para. 42 (n 91).
• [18] App No 420/07, Judgment of 5 October 2010, para. 49 (n 91).
• [19] App No 420/07, Judgment of 5 October 2010, para. 50 (n 91).
• [20] App No 420/07, Judgment of 5 October 2010, para. 51 (n 91).
• [21] App No 420/07, Judgment of 5 October 2010, para. 52 (n 91).
• [22] [1995] IRLR 167.
• [23] [2013] EWCA Civ 886, 19 July 2013. This was not a pure proprietary right, but was based on an agencyargument for reasons of business efficacy.