How far can the law go?
WhatsApp messages lead to police force action
Article 8 of the European Convention on Human Rights says that everyone has the right to respect for private and family life, their home and correspondence. Public authorities are not allowed to interfere with that except in exceptional circumstances such as national security, public safety or the prevention of crime. Employment tribunals, like all courts, must construe employment law in a way which is compatible with the ECHR. But how far does this right to privacy go, and what kind of things can trump it?
In BC V Chief Constable of the Police Service of Scotland, police officers signed up to a code of professional conduct. The code applied both on and off duty due to the public nature of their jobs. The code said officers must not behave in a way which interferes with the ‘impartial discharge’ of their duties or gives the impression of partiality. The Police Service of Scotland (PSS) conducted an investigation into sexual offences within the police force. As part of the investigation, private WhatsApp messages from groups chats between officers were found, containing racist, sexist, anti-Semitic, homophobic and disablist comments, as well as photos of crimes scenes in breach of police procedures. The PSS brought misconduct charges against numerous officers. The officers retaliated with a claim alleging that the misconduct proceedings based on private WhatsApps breached their right to privacy.
The Inner House of the Court of Session (a Scottish appeal court) found that there was no reasonable expectation of privacy for police officers in relation to the private messages. They were holders of public office and had signed up to certain restrictions on their private life. In addition, all the officers involved were under a contractual duty to report the behaviour of colleagues whose behaviour had fallen short of the code of conduct. It was also relevant that the messages had been discovered openly as part of a criminal investigation rather than in a covert manner. The court disagreed with the officers’ contention that the messages could only be used in the prevention of crime. There was a clear public interest in maintaining a properly regulated police force in which the public could have confidence. That objective was enough to justify the restriction on the officers’ Article 8 privacy rights.
This decision accords with other employment cases where tribunals have refused to find a reasonable expectation of privacy in relation to comments made on social media or in work related emails. However, to my knowledge, it is the first case involving WhatsApp messages sent from personal accounts. Although this case involves public sector employees, the same principles may well apply to any employees who are subject to professional standards where the messages in question suggest a breach of those standards in a way which might impact on public confidence in that field.
