The European Court of Human Rights decided in an October 2019 decision, Lopez Ribalda v. Spain, that surveillance of workers using hidden video cameras can be valid if there is reasonable suspicion that a crime or serious misconduct has been committed, causing significant harm to the employer.
Ribalda has affected the interpretation of the use of covert video surveillance in western Europe, which was the subject of the first article in a three-part series on this decision. This article, the second in the series, examines the impact of the decision on eastern and northern Europe. The final part will look at the effect of Ribalda outside the European Union.
In Denmark, collective agreements often require employers to inform employees about any monitoring measures no later than six weeks before an agreement's implementation, unless the purpose of the monitoring measures would be thwarted by advance notice.
In the Czech Republic, employees must also be duly informed about personal data processing and specific monitoring methods, including video surveillance. However, Ribalda allows employers to monitor serious wrongdoing by employees to protect the business.
In Finland, the Act on the Protection of Privacy in Working Life sets out strict conditions for the use of camera surveillance in the workplace. Employees must be consulted and notified before camera surveillance starts, and a prominent notification must be displayed in areas where cameras are located. Directing cameras at workstations is generally prohibited, but it is allowed in certain cases, for example, if it is necessary to prevent or investigate property crimes. Employees nonetheless must be informed of the location of directed cameras.
In Hungary, legislation determines certain main aspects of video surveillance but leaves most of the specifics open to interpretation. The Hungarian Data Protection Authority (HDPA) has settled some of these open questions, issuing guidelines, decisions and opinions dating back as far as 2013, most of which are still considered relevant even after the General Data Protection Regulation (GDPR) took effect in 2018.
But the grounds necessary to conduct lawful hidden-video surveillance are notably absent from the HDPA opinions, causing some uncertainty. The Ribalda decision should bring a lasting and much-needed change in Hungary.
Currently in Latvia, the requirement to inform employees about any data processing is based on Articles 13 and 14 of the GDPR, as well as on the provisions of the Latvian Data Processing Law. These regulations do not provide any exceptions to rules
concerning informing data subjects about video surveillance. Ribalda might have a significant impact on the interpretation of obligations stemming from the GDPR in video surveillance cases.
The Lithuanian data protection authority has not provided any official comment regarding Ribalda. Nonetheless, a similar opinion on the monitoring of employee communication exemplified a typical pre-GDPR approach. This opinion provided that:
Monitoring of an employee's communication can be justified only if there was valid suspicion that a certain employee is acting against the law or internal rules.
Overall monitoring would not be justified; only monitoring of suspected employees would be allowed.
The Lithuanian Law on the Legal Protection of Personal Data provides that employees must be informed in writing about video and voice monitoring in the workplace.
In Poland, strict provisions have been in place since May 2019 stipulating when monitoring of employees is allowed and how it should be conducted by employers. Hidden-video surveillance of employees can be hard to defend since, according to the relevant legal provisions, employees must, with no exceptions, be informed they are being monitored. Nonetheless, it seems that Ribalda may have carved out certain circumstances under which covert video monitoring of employees can be justified.
According to the Slovak Labor Code, employers can monitor employees only in the following circumstances:
Similarly, the GDPR requires that data subjects be informed about monitoring in advance.
The Slovak Data Protection Office has not yet issued any formal view on whether employers can monitor employees to protect its property without prior notification about the manner and extent of monitoring. Should such a case occur, the Slovak Data Protection Office will certainly need to take Ribalda into consideration. Ribalda might open the door to a different approach to the protection of employees' privacy in specific cases.
In Sweden, private companies or public authorities carrying out video surveillance outside public areas are not required to obtain permission, but the requirements according to GDPR must be applied. If the private organization or public authority is bound by a collective bargaining agreement, it has to negotiate the surveillance with the relevant trade union before it can be carried out.
If the employee has been monitored, the employee would still be able to claim damages based on Article 82 of the GDPR, even if his or her dismissal was lawful.
The online link to the article can be found here.
Reprinted with permission from SHRM.org. c 2020. All rights reserved.