We look at the decision of the European Court of Human Rights (ECtHR) in Antovic and Mirkovic v Montenegro [2017] ECHR 1068. This case focuses on the use of video surveillance in the workplace and whether it was a breach of the right to privacy under Article 8 of the European Convention on Human Rights (ECHR).

This case involved two professors who taught at the University of Montenegro. In February 2011 they were informed that video surveillance had been introduced in their teaching auditoriums. The purpose of this was to ensure the safety of property and people, and to monitor teaching. Data collected from the surveillance was only accessible by the Dean of the School of Mathematics and was stored for one year.

In March 2011 the professors complained about the necessity of the surveillance to the Personal Data Protection Agency (the Agency). The Agency investigated the matter and ordered the cameras to be removed by May 2011 on the basis that there was no evidence of danger to people and property, and monitoring of teaching was not a legitimate ground for surveillance. The cameras were finally removed in late January 2012.

The professors brought claims for compensation against the University, the Agency and the State of Montenegro for violation of the right to a private life under Article 8 of the ECHR, in particular the unauthorised collection and processing of data on them.

The Court found that the notion of private life included activities in the business and professional spheres. However, it also found that because the University was a public institution performing activities of a public interest (teaching), it was not possible for video surveillance of the auditoriums (which were public teaching areas) to violate respect for the professors' private lives. The professors appealed.

The High Court upheld the Court of First Instance judgment.

The ECtHR confirmed that Article 8 of the ECHR guarantees a right to a private life in the broadest sense. This includes professional activities or activities taking place in a public context.

It reiterated that both covert and non-covert surveillance of an employee at their work place is a considerable intrusion into their private life. Hence it constituted an interference with their rights under Article 8.

It went on to assess whether interference with that right was on the basis of a legitimate aim. The ECtHR concurred with the Agency findings that the surveillance was a breach of domestic data protection law on the basis there was no evidence of danger to people and property, and monitoring of teaching was not a legitimate ground for surveillance.

Compensation was awarded to the professors.

The outcome of this case is not surprising, in particular following the Grand Chamber of the ECtHR's decision in Barbulescu v Romania where the Court held that an employer monitoring the private communications of an employee on a work computer was a breach of Article 8.

Another key factor in this case was that the monitoring of teaching was not a permissible aim under Montenegro's data protection law.

The outcome would probably have been similar had this been a UK case, as the Data Protection Act 1998 protects individuals in a similar way and provides more effective remedies than trying to enforce Article 8 rights.

Guidance on video surveillance for employers has been published by the Information Commissioner: see the Information Commissioner's Office Code on CCTV and their Employment Practices code.