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16 November 2020

273: Employee privacy rights over personal WhatsApp messages

In BC and others v Chief Constable of the Police Service of Scotland (PSS), the Inner House of the Court of Session has upheld a decision that personal WhatsApp messages found on an officer’s mobile phone during a criminal investigation could be used as a basis for misconduct proceedings.

During an investigation into sexual offences within the PSS, a series of offensive WhatsApp messages were found on a police officer’s phone which were part of two group chats between officers. The messages were described as ‘sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability’ with a ‘flagrant disregard for police procedures by posting crime scene photos of current investigations.’ They were passed to the PSS’ Professional Standards Department which then brought professional misconduct charges against a number of police officers in the group.

Some of the police officers challenged the right of the PSS to use their personal messages in the context of misconduct proceedings, arguing that this infringed their right to privacy under Scottish law and Article 8 of the European Convention on Human Rights.

The Outer House of the Scottish Court of Session rejected the police officers’ claim, ruling that they had no expectation of privacy when they participated in the WhatsApp groups. Their right to privacy was subject to professional standards relating to honesty, integrity, equality, diversity and reporting of improper conduct which applied both on and off duty. In any event, the officers also had a statutory obligation to maintain public confidence in their profession which would have justified interference with their right to privacy.

On appeal, the Inner House of the Scottish Court of Session agreed with this reasoning. The key factor when applying Article 8 is whether there is a reasonable expectation of privacy. This is an objective test and will depend on all the circumstances. In signing the professional standards when they joined the force, the officers had accepted that their right to privacy was limited. The lower court had also been entitled to take account of the content of the messages which included racist, sexist and homophobic comments and crime scene photos. The Court therefore upheld the decision that there was no reasonable expectation of privacy in this case and agreed that even if there had been a breach of the officers’ privacy rights, using the messages for disciplinary purposes was necessary and proportionate to maintain public confidence in the police.

A ruling from the Scottish appeal court is not binding on English courts, only persuasive. However, this is an interesting decision for any employer faced with the difficult question of how far personal social media messages can be used in investigations and disciplinary proceedings. There is a clear distinction between ordinary members of the public, who have a reasonable expectation of privacy even if their messages are inappropriate, and employees in regulated sectors who are subject to higher professional standards which also restrict their private life. As this case illustrates, where private messages display a serious breach of professional standards which could damage public confidence or safety, or the rights of others, employers may be able to justify interfering with the right to privacy. Particularly given the current changes in working patterns due to the pandemic, this case is also a useful reminder to ensure that social media policies and training are kept up to date and adapted if necessary, so that all employees understand the standards expected of them and what constitutes inappropriate online behaviour.

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