Background

When you send a message to a WhatsApp group, you would expect it to go no further than to the members of that group (regardless of the ability to "screen shot"). Most people would not expect such messages to end up in the hands of their employer. However, this is exactly what happened in a recent case involving the police force.

As part of an investigation into sexual offences within the police force, a detective discovered various WhatsApp messages on a phone belonging to one of the suspects. The messages were found in two separate group chats with other officers. The messages within these group chats were described by the Senior Counsel for the police as "blatantly sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability". The discovery of these messages (although not related to the original investigation) led to internal misconduct charges being brought against a number of officers who were members of these group chats.

The officers complained that using their WhatsApp messages to bring proceedings against them was an infringement of their common law right to privacy, or an interference with their right to privacy in terms of Article 8 of the European Convention on Human Rights (ECHR). It is notable that these messages were the only evidence relied upon in the misconduct charge and, without them, there was no case against the officers.

Is there a right to privacy?

As a preliminary issue, the court had to consider whether the common law in Scotland recognised a right to privacy. In England, the courts have already recognised this such right – most notably in a case brought by Naomi Campbell after photographs were published of her leaving a rehabilitation centre. More recently, Sir Cliff Richard successfully raised a claim against the BBC and the police for a violation of his privacy.

Lord Bannatyne noted that it would be "inherently unlikely" that Scotland and England would differ on this and went on to say that it was "highly likely" that such a common law of right to privacy existed in Scotland.

The court was clear that the officers had a reasonable expectation of privacy (even when a group chat is used) and that the messages were therefore private. It was noted that the content of the messages did not change the expectation of privacy. The court also found that the WhatsApp messages were protected by Article 8 of the ECHR.

However, in this case it was particularly important that the individuals involved were police officers. They are subject to the Standards of Professional Behaviour and the Police Service of Scotland (Conduct) Regulations 2014 which impose certain standards on their conduct, both when they are on and off duty. In the court's view, this justified limiting their right to privacy.

While Article 8 of the ECHR provides that everyone has the right to respect for their private life, including their correspondence, the court here took the view that the interference with this right was justified on public safety grounds. Given that the individuals were police officers, the messages suggested (or at least could give the impression) that they might not treat certain groups of the public fairly, thus creating a public safety issue. In these circumstances the employer was therefore allowed to rely on the private messages in taking action against the officers.

What does the European Court of Human Rights have to say on the issue?

The European Court of Human Rights (ECtHR) has looked at the question of privacy in workplace communications on a couple of occasions. In the leading case, the Grand Chamber confirmed that the concepts of "private life" and "correspondence" (both protected by Article 8 of the ECHR) are capable of covering workplace communications as well as personal communications. In that case, the Grand Chamber found that the individual's Article 8 rights had been infringed. The employer had put in place an IT policy which warned employees that their work would be monitored but it did not warn them that the content of their communications would be intercepted or monitored.

More recently, a UK case reached the ECtHR, in which the court found that the employee had no right to expect his communications would be private. This decision was reached in part because the employer had informed the employee that complaints had been made about his behaviour. After that date, he could not have any expectation that any materials or communications linked to the allegations would remain private.

Should we be deleting our WhatsApp group chats?

As an employer, you might be wondering whether this case gives you scope to check your employees' private messages. As an employee, you might be thinking about how quickly you can delete WhatsApp!

The ECtHR decisions show us that whether an employee can reasonably expect their workplace communications will remain private will depend on the particular circumstances. Those working in industries which are subject to such codes of conduct in the same way as police officers should take note of the Scottish decision, which confirms that the right to privacy is more likely to be limited for those in such regulated professions.