Employers sometimes mistakenly believe that secretly filming employees is prohibited. However, that is not entirely true, as in some cases it is indeed permitted. It is, of course, true that employees' privacy rights must be respected, meaning that covert camera surveillance is only allowed in exceptional circumstances. The European Court of Human Rights recently confirmed that the Dutch regulations regarding this do not constitute a violation of the right to privacy.
Camera surveillance at the workplace is permitted
If you wish to introduce camera surveillance in the workplace in the Netherlands, for example to prevent theft, a number of conditions must be met. For instance, there must be a legitimate interest , and that interest must outweigh the violation of privacy rights. An example of this is protecting visitors or preventing theft. In addition, the camera surveillance must be necessary. This means that there no less intrusive way to achieve the objective. Restricting access to a specific area may thus be preferred over continuously filming that area.
Subsequently, the employer must conduct a privacy assessment . In doing so, the employer must determine the extent to which the privacy rights of visitors and employees are violated and the extent to which the camera surveillance contributes to the legitimate objectives. The employer must also discuss these matters with the Works Council. Finally, a DPIA (Data Protection Impact Assessment) may also be required. When it concerns large-scale camera surveillance to combat fraud and theft by employees, such a DPIA is always mandatory.
Covert filming at the workplace is possible in exceptional circumstances
So-called covert camera surveillance using hidden cameras is prohibited in principle. For instance, MediaMarkt faced sanctions in 2013 when it had mystery shoppers film staff members using hidden cameras “as part of a training.” That, of course, goes much too far. According to the Dutch Data Protection Authority, however, covert filming of staff is permitted if there are clear suspicions of theft or fraud. But even then, the camera surveillance must meet a whole series of conditions.
Thus, the employer must first make other efforts to prevent theft or fraud. Covert camera surveillance is only permitted if these efforts yield no results. Furthermore, covert camera surveillance must be limited in time and the infringement of privacy must remain limited. Hidden cameras in toilets, for example, are always prohibited. A DPIA is naturally mandatory here as well, as is the consent of the Works Council. In some cases, prior consultation with the Data Protection Authority is also necessary, particularly when there are significant privacy risks. Finally, employees must be sufficiently informed in advance about the right to film covertly, for example in the camera surveillance regulations.
Confirmation of right to covert camera surveillance
In a recent judgment (ECtHR 17/10/2019, López Ribalda in Spain), the European Court of Human Rights also confirmed that covert camera surveillance, under certain conditions, does not constitute a violation of the right to privacy. In doing so, the Grand Chamber of the European Court of Human Rights took various factors into account, which are naturally also relevant to the Netherlands:
- The covert camera surveillance only applies to a limited part of the workplace;
- The duration of the covert camera surveillance is no longer than necessary to bring the theft or fraud to light (here: 10 days);
- takes place in public areas and not in private areas such as changing rooms or toilets;
- The scale of the theft by the employees was sufficiently significant to justify the covert camera surveillance.
These arguments have already been discussed at length above. Furthermore, allow us to emphasize this last point: covert camera surveillance is only permissible if the fraud or theft is sufficiently significant. In the Netherlands, this translates into examining the legitimate interest and the balancing of interests during the privacy test. Do a few euros disappear from the till every month? That will not justify covert camera surveillance, especially since it could simply involve an accumulation of minor errors. Are we talking about tens to hundreds of euros per week? Then, of course, that is a different story.
Call MKB Juristen for more information
Do you wish to use covert camera surveillance? If so, you are required to inform employees of this in advance. You may also do this in regulations regarding camera surveillance or in personnel regulations. MKB Juristen will draft this for you.
Are you planning to implement covert camera surveillance? Then present the situation to one of the specialized legal experts at MKB Juristen. We will assess whether covert camera surveillance is justified in this case and provide legal advice. Call MKB Juristen now for more information on this.
