The Territorial Scope of EU-Privacy Law; Two Opinions from AG Szpunar

By Stephan Mulders & Burak Haylamaz

On the 10th of January 2019, AG-Szpunar concluded in Google v. CNIL that a removal request based on the Google Spain v. Costeja judgement should not have a worldwide effect. However, on the 4th of June, the same AG concluded that an EU national court can, in fact, order an internet service provider to remove information worldwide in the case of Ewa Glawishnig v. Facebook Ireland.[1] In this post, we will analyze these seemingly contradictory opinions.

 

Both cases regard the right to privacy. The right to privacy is not an absolute but a relative right so that its scope must be balanced with competing rights, e.g. the right to freedom of expression and the right to access information of public. If there is a conflict between the right to privacy and the competing rights, a balancing test determines which right has primacy in a specific case.

Such balancing test is difficult -hence being queried- to accomplish if information is distributed over multiple countries as some countries tend to value privacy higher than the freedom of expression and vice versa. It is also questioned whether a national European court can effectively strike a balance on a worldwide level. These concerns, in turn, raise a legal question that whether European courts should extend their jurisdiction beyond European territories and order the removal of information in a global scale.

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ECHR on Hidden Cameras on the Workfloor: Two Interferences with Art. 8 ECHR

(Case of Lópex Ribalda and others v.s Spain, ECtHR 09 January 2018 appl. 1874/13 and 8567/13 and Case of Antovic and Mirkovic v. Montenegro, EctHR 28 November 2017, 70838/13)

Recently the European Court of Human Right (ECtHR) decided on two separate cases of hidden cameras on the workfloor. In the first case, the University of Montenegro decided to place cameras in the classrooms, vexing several professors. The second case was about a Spanish supermarket which placed hidden cameras to prevent theft among employees. These cameras proved to be very effective, six employees where caught. However, the hidden cameras are also unlawful, according to the ECHR. In this article, these cases will be briefly discussed as well as their influence on the Dutch law.

The professors and supermarket employees: an outline of the cases

So, the first case regards the University of Montenegro. The dean of this university decided to place cameras in the classrooms, supposedly to protect the property of the university. According to the dean, there were cases of damaged property, drinking in the classrooms and even animals were taken inside the classrooms.Apparently, the professors were not amused by the camera surveillance. According to them, there is absolutely no reason for camera surveillance. After all, the classrooms are always closed outside class hours and only contained some old chairs and tables, which are bolted to the floor. Basically, according to them, it is almost impossible to damage any university property. The local data protection authority (DPA)  interfered on request of the professors. The DPA ordered the university subsequently to remove the cameras. It took the University more than a year after that order to remove the cameras. This led the professors to file for damages, which case was ultimately brought before the ECtHR. 

Apparently, not only deans lie awake at night because of stolen or damaged property. This is also a serious problem for Spanish supermarket entrepreneurs. This supermarket entrepreneur had to deal with a monthly cash deficit of up to € 25.000,-. Obviously, he suspected that his employees had something to do with that. So he decided to place hidden cameras above the checkouts. Obviously without telling his employees beforehand. The cameras proved to be very successful. Six employees were caught and fired. In the dismissal proceedings, the employees argued that their privacy was infringed because of the hidden cameras. Spanish data protection law requires subjects to be always informed of the processing of personal data beforehand. As the supermarket entrepreneur did not inform his employees beforehand, he acted against the law. The Spanish courts, however, agreed that the entrepreneur acted against the law by not informing his employees beforehand, but as the entrepreneur faced serious theft in his company, he was allowed to do so. So, the dismissal held before the Spanish court. The employees, therefore, went to the ECtHR to collect damages.

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