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Developed News Story | CASE OF SURVEILLANCE CAMERAS IN KEYLOGGER EMPLOYEE MANAGEMENT SYSTEM

The judgments coming out across the globe on camera surveillance show a mixed picture, but it is still possible to discern a pattern of the keylogger employee management system. The courts are generally unlikely to say continuous, intrusive, or unannounced camera surveillance is allowed and there need to be good reasons to persuade them otherwise. However, in Canada, in a Quebec case, they did just that. The court found the installation of five surveillance cameras that continuously monitored employees at a meat processing plant permissible. Although the continuous surveillance was a prima facie breach of the Québec Charter of Human Rights and Freedoms, the employer had reasonable grounds for it. The employer had recently lost a major customer as a result of a contamination incident and so the purpose of the surveillance was to discover its source, rather than to monitor the employees.

Similarly, in Germany, an employer used open video surveillance at its public salesrooms and cash desks and saved all records for several months. Based on concrete suspicion, the employer analyzed the material and discovered an employee had stolen money six months previously. It dismissed the employee and the courts decided the records should not be used in evidence, as they had been stored for an excessively long time. But rather surprisingly, the Federal  Labour Court overturned this judgment and allowed the records in evidence, saying the suspicion of a crime overrides data deletion obligations.

RAISE OF QUESTION

What about all the records stored over several months that did not show any crimes? The Federal Labour Court indicated that some employees may have a claim for damages in prospect as a result. In Greece in 2015, the Hellenic Data Protection Authority fined a company for placing a camera in a management office, which was found to be disproportionate. In a case in 2017, the Authority found cameras in company trucks illegal. The cameras were put in for the safety of drivers, cargo, and other individuals, but each lorry had two – one constantly recording the route and the other continually recording the driver.

A recent Spanish case found that a noticeable sign at the workplace informing people about cameras was not enough: the employee representatives also needed to be specifically informed – and the need to involve them seems to be a growing trend. The Dutch Supreme Court decided in 2001 that employers needed a ‘serious interest’ if they wanted to use hidden cameras and that they should be used only as a last resort. This stance has provoked much case law, most recently a case in which the employer had put mystery shoppers in its shops to film employees. When the employer showed the video images to the employees as part of discussions about performance, the case ended up in the courts – and was found to be an infringement of privacy law.

As the clash between ever-smarter technology and evermore-developed privacy concerns intensifies, employers are left charting the narrow course between serving their own legitimate interests in the keylogger employee management systems and respecting their employees’ privacy. Research shows that although there are some pretty well-established general legal principles across the world, there are also plenty of pitfalls for the unwary to fall into. Therefore, it is crucial for employers to be aware of the ground rules at the local level and to implement robust and proportionate policies.

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