EHRM, 28-11-2017, nr. 70838/13

The case originated in an application (no. 70838/13) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by two Montenegrin nationals, Ms Nevenka Antović and Mr Jovan Mirković (‘the applicants’), on 25 October 2013.

The applicants were represented by Mr V. Radulović, a lawyer practising in Podgorica. The Montenegrin Government (‘the Government’) were initially represented by Mr Z. Pažin, their Agent at the time, and later by Mrs V. Pavličić, the newly appointed Agent.

The applicants alleged that the unlawful installation and use of video surveillance equipment in the university auditoriums where they held classes had violated their right to respect for their private life.

On 3 December 2014 the complaint concerning the video surveillance was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

Declares, by a majority, the application admissible;

Holds, by four votes to three, that there has been a violation of Article 8 of the Convention;

Holds, by four votes to three,

Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith

Registrar

Robert Spano

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

R.S.

S.H.N.

We fully agree with the finding of a violation of Article 8 of the Convention. We would, however, have preferred a slightly different reasoning.

This case is about video surveillance in university auditoria where the applicants, two professors, have been teaching to their students. The main issue before the Court is whether Article 8 is applicable to the facts of the case.

While the majority consider that university auditoria are the teachers' ‘workplaces’ and approach the case as one relating to an interference in an employee's private life by his employer (see paragraph 44 of the judgment), we would attach more importance to the nature of the activity that was placed under surveillance.

An important aspect of the right to respect for private life is the ‘right to live privately, away from unwanted attention’ (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003-IX (extracts); Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 43, ECHR 2004-VIII; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 83, ECHR 2015 (extracts); Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 130, ECHR 2017 (extracts); and Bărbulescu v. Romania [GC], no. 61496/08, § 70, ECHR 2017 (extracts)).

However, Article 8 of the Convention also guarantees the development, without outside interference, of the personality of each individual in his or her relations with other human beings. 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, ECHR 2001-IX; Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003-I; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003-IX (extracts); Uzun v. Germany, no. 35623/05, § 43, ECHR 2010 (extracts); Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 95, ECHR 2012; Couderc and Hachette Filipacchi Associés, cited above, § 83; Vukota-Bojić v. Switzerland, no. 61838/10, § 52, 18 October 2016; Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 191, ECHR 2016; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 131).

There are a number of elements relevant to consideration of whether a person's private life is concerned by measures implemented outside that 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 (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Perry, cited above, § 37; Uzun, cited above, § 44; Vukota-Bojić, cited above, § 54; and Magyar Helsinki Bizottság, cited above, § 193).

The present case does not concern security cameras placed, for instance, at the entrances and exits of university buildings. It relates to the video surveillance of auditoria. While ensuring the safety of people and property was invoked as one of the aims of the measure (see paragraph 7 of the judgment), this justification was not considered credible by the Council of the Personal Data Protection Agency (see paragraph 11 of the judgment). The other aim invoked was monitoring of the teaching activities (see paragraph 7 of the judgment). The fact that it was the dean who had access to the tapes seems to confirm that this was indeed an aim pursued.

University auditoria are neither private nor public places. They are places where teachers meet their students and interact with them (see paragraph 44 of the judgment).

These interactions are of course not of a purely social nature. The setting is a very specific one. The teacher teaches students who are enrolled in his or her class. The relationship between teacher and students takes shape during the whole period of teaching (a year or a semester). In the auditorium the teacher can allow him- or herself to act (‘perform’) in a way he or she would perhaps never do outside the classroom.

It seems to us that in such an interaction the teacher may have an expectation of privacy, in the sense that he or she may normally expect that what is going on in the classroom can be followed only by those who are entitled to attend the class and who actually attend it. No ‘unwanted attention’ from others, who have nothing to do with the class. There may be exceptions, for instance when a lecture is taped for educational purposes, including for use by students who were unable to physically attend the class. However, in the applicants' case there was no such purpose.

It seems to us that at least in an academic environment, where both the teaching and the learning activities are covered by academic freedom, the said expectation of privacy can be considered a ‘reasonable’ one. Surveillance as a measure of control by the dean is, in our opinion, not something a teacher should normally expect.

Having regard to the specific features of the teacher-student relationship, we have no difficulty concluding that Article 8 of the Convention is applicable.

The foregoing does not mean that video surveillance in an auditorium is not possible.

There may be good reasons for putting an auditorium under video surveillance. But, since Article 8 is applicable, such a measure will then have to comply with the conditions set out in Article 8 § 2 (see paragraph 55 of the judgment). This means, among other things, that there must be a proper legal basis, that the scope of the surveillance must be limited, and that there are guarantees against abuse.

In the present case, we concur with the judgment insofar as it concludes that the interference in question was not in accordance with the law and therefore constituted a violation of Article 8 (see paragraphs 56–60 of the judgment).

In the majority's view, the contested video monitoring of the university auditoriums where the applicants were teaching as professors, related to and interfered with the applicants' private life as protected by Article 8 of the Convention (see paragraphs 44–45 and 56 of the judgment). As we respectfully disagree, we voted against declaring the application admissible and finding a violation of Article 8 of the Convention.

In our view, and as explained below, the judgment expands the scope of Article 8 § 1 of the Convention and may have significant implications.

The Court has decided a number of cases concerning monitoring in public places, including video surveillance, and it transpires from case-law that such monitoring does not automatically raise an issue under Article 8 § 1 of the Convention.

In this context, the Court has stated that ‘private life’ is inapplicable to places which are freely accessible to the public and which are used for activities which do not relate to the private sphere of the participants (see Steel and Morris v. the United Kingdom (dec.), no. 68416/01, 22 October 2002). Furthermore, the normal use of security cameras, whether in public streets or on premises, such as shopping centres or police stations, do not as such raise issues under Article 8 § 1 of the Convention (see Peck v. the United Kingdom, no. 44647/98, § 59, ECHR 2003-I, and Perry v. the United Kingdom, no. 63737/00, §§ 38 and 40, ECHR 2003-IX (extracts)). That having been said, recording and systematic or permanent storing of such data may interfere with private life, even if the monitoring has taken place at a public place (see Peck, cited above, § 59, and Perry, cited above, § 38). Likewise, covert and systematic surveillance of a person in public places, including by means of video, and storing and subsequent use of the data obtained may interfere with private life (see Perry, cited above, §§ 39–43, and Vukota-Bojić v. Switzerland, no. 61838/10, § 52–59, 18 October 2016). Likewise, disclosure of recordings from surveillance cameras in public places may interfere with private life (see Peck, cited above, §§ 60–63). Likewise, permanent video surveillance of a person may interfere with private life (see Van der Graaf v. the Netherlands (dec.), no. 8704/03, 1 June 2004).

The Court has also decided a number of cases concerning monitoring at workplaces, including video surveillance, and it transpires from this case-law that an employer's surveillance of employees at the workplace does not automatically raise an issue under Article 8 § 1 of the Convention.

In this context, the Court has found that an employer's interception of an employee's phone calls from the workplace fell within the scope of the notion of ‘private life’ in situations where the employee had a reasonable expectation of privacy for such calls (see Halford v. the United Kingdom, 25 June 1997, §§ 44–46, Reports of Judgments and Decisions 1997-III). This applies not only to an employee's phone calls but also to e-mails and internet usage (see Copland v. the United Kingdom, no. 62617/00, §§ 41–42, ECHR 2007-I). The Court has stated that an employee's reasonable expectations as to privacy is a significant though not necessarily conclusive factor (see Köpke v. Germany (dec.), no. 420/07, 5 October 2010, Bărbulescu v. Romania [GC], no. 61496/08, § 74, ECHR 2017). The Court has found that the video recording of an employee's conduct at her workplace without prior notice, the processing and examination by several persons of the material obtained, and the subsequent use in public court proceedings of such material raised an issue under the employee's ‘private life’ (see Köpke, cited above). Likewise, the Court has found that an employer's monitoring of an employee's use of internet and access to private messages sent by means of an instant messaging service (Yahoo Messenger) raised an issue under the applicant's ‘private life’ (see Barbulescu, cited above, §§ 74–81).

Under the Court's case-law concerning monitoring, it is, in principle, necessary to make a distinction between video monitoring as such and the recording, processing and use of the data obtained on the other side, both situations being able to give rise to private-life considerations (see Köpke, cited above, Peck, cited above, §§ 58–59, Perry, cited above, §§ 38 and 40–41).

From the Court's existing case-law we deduce the following: video monitoring or surveillance does not in itself amount to an interference with the private lives of the persons monitored. Whether that is the case depends on an assessment of the specific circumstances of the case, including where the monitoring takes place, the nature of the activities monitored, whether the monitoring is targeted and systematic, whether the persons monitored had a reasonable expectation of privacy, whether notice had been given or whether the person irrespective of such notice had a reasonable expectation of privacy having regard to the nature of the activities, whether the information is stored, processed and made use of, including whether it is disseminated. In other words, it depends on an assessment of the video monitoring as such as well as the storing, processing and use of the data or information gathered.

In assessing the applicability of the ‘private life’ aspect of Article 8 § 1 of the Convention, the majority focuses on the video surveillance as such (see paragraph 44–45 and 56 of the judgment), and not on any recording or subsequent use of the information gathered. For the majority, it suffices to evoke Article 8, on the basis that the video surveillance or monitoring took place in the workplace of the applicants, the auditorium where they as professors were teaching and interacting with students. In our view, this is a very extensive and broad understanding of the ‘private life’ notion.

In our view, having regard to the specific circumstances of the present case, the university's video monitoring in the auditorium where the applicants were teaching as professors did not raise an issue as regards the applicants' private life, and in this context we agree with the assessment of the domestic courts. We find it conclusive that the video monitoring took place at the university auditoriums, that the applicants had been notified of the video surveillance, that what was monitored was the applicants' professional activity, that the surveillance was remote, that there was no audio recording and thus no recording of the teaching or discussions, that the pictures were blurred and the persons could not easily be recognised, that the video recordings were only accessible to the dean and were automatically deleted after 30 days, and that the data or information was not subsequently used.

As mentioned above, the majority only relies on the video monitoring as such, and not on the recording, processing or possible use of the data gathered. Be that as it may, we would like to add that in our view the storing of the video surveillance did not in itself raise an issue under ‘private life’. Even though it may be argued that a video filmed concerns data about identified or identifiable persons (see Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 133, ECHR 2017 (extracts)), the applicants have not argued in this case that the quality of the video was such that it would lead to their identification, thus raising an issue under the applicants' private life as protected by Article 8 § 1 of the Convention, nor that any data was or could be used in such a way that the ‘private life’ aspect of Article 8 § 1 of the Convention came into play (see a contrario S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 60–61 and 67, ECHR 2008).

In sum, we respectfully dissent from the majority's findings that the video monitoring, as such, brought the applicant's complaint within the scope of Article 8 § 1 of the Convention and constituted an interference with their privacy rights. We emphasise that the applicants are university teachers who were giving lectures in a university amphitheater, thus fully engaged in a professional activity in a quasi-public setting, and not, for example, in their offices. Having been notified of the video surveillance in the amphitheatres, their reasonable expectation of privacy in that particular context, if any, was very limited. In conclusion, the mere fact of the amphitheaters being monitored cannot in our view engage Article 8 § 1 of the Convention without further elements being demonstrated, as we have explained above. By expanding the scope of Article 8 § 1 to include the facts of the present case, the majority have overly broadened the notion of ‘private life’ under that provision, to an extent which lacks a basis in the Court's case-law and is not sufficiently supported by cogent legal arguments.