Distinction between privacy and data protection in ECtHR’s Montenegro case

A recent judgment by the European Court of Human Rights (ECtHR) – Antovic and Mirkovic v. Montenegro (28 November 2017) – attracted a fair amount of commentary that focused on the judgment’s main theme: employers’ use of video-surveillance at work. But the case also contains an interesting aspect which for the most part remained unnoticed: it brings to light the difference between the right to respect for private life and the right to protection of personal data. Establishing interference with the former (“interference” not yet necessarily amounting to “infringement”) may be a more daunting task than establishing interference with the latter.

The School of Mathematics of the University of Montenegro introduced in February 2011 video surveillance in seven auditoriums where classes were held and in front of the Dean’s Office. In April 2011, Montenegrin data protection authority ordered the School to remove the cameras because – contrary to the School’s allegations – there was no evidence that there was any danger to the safety of people and property, or to confidential data, to justify the surveillance. At the same time, the surveillance of teaching, the other rationale advanced by the University, was not a legitimate ground that could justify video surveillance.

Ms. Antovic and Mr. Mirkovic sued for non-monetary damages for a violation of their right to a private life. The local courts of first and second instance denied the claim. The courts took a position that the university was a public institution and an auditorium was a public place, so the use of cameras did not interfere with the plaintiffs’ private lives.

A majority of four judges in the ECtHR’s Second Section decided that video surveillance of the two employees in the classroom was an interference with their right to respect for private life. The interaction the professors have with others, in the university auditoria, falls within the scope of “private life”, so monitoring by the cameras interferes with the private life. Because a right (to respect for private life) from the European Convention on Human Rights was affected, the professors’ application to the ECtHR was admissible. (The majority then moved to analyzing the merits of the case and concluded that the interference with the right to respect for private life was not in accordance with the law. This is so because the relevant national law – the Montenegrin Data Protection Act – allows only for video-surveillance if it is intended to ensure the safety of property and people, or confidentiality of data, and there was no evidence in the case that either property, or people, or confidentiality of data, had been in jeopardy.)

Three judges disagreed with the majority. The dissenters considered the university auditorium “freely accessible to the public and used for activities which do not related to the private sphere of the participants”. As the Montenegrin courts held, the university’s video monitoring in the auditorium where the applicants were teaching as professors did not – under the circumstances – raise an issue of the applicants’ private life. The dissenters voted against declaring the application admissible, because in their opinion there was no interference with the right to respect for private life, the right on which the applicants relied.

The dissenters accepted that the use of cameras in a public context may give rise to private-life considerations – but that is not always the case. If the information gathered by the use of cameras is recorded and subsequently disseminated, the use of the cameras is likely to interfere with the right to private life. But if the cameras are used for monitoring and virtually nothing else, there does not have be an interference. In the particular case, “there was no audio recording and thus no recording of the teaching or discussions, [t]he pictures were blurred and the persons could not easily be recognised, [t]he video recordings were only accessible to the dean and were automatically deleted after 30 days, and [t]he data or information was not subsequently used.” Therefore, the video surveillance did not raise an issue as regards the applicants’ private life.

Given the sharp split in the opinion, the Court might revisit this issue at some point and offer a clearer guidance on the limits of “private life” in the university setting.

Regardless of whether the majority or the minority were in the right in the particular case, it is noteworthy that both carried out an analysis within the boundaries of a “private life” framework.

There is a simple reason why the judges conceptualized the issue as concerning the right to respect for their private life, and not the right to protection of personal data. The European Convention of Human Rights protects the former right, in Article 8. But the Convention does not know of the right to protection of personal data, as a standalone right. This is in contrast to the Charter of Fundamental Rights of the European Union, which protects the right to respect for private life in Article 7, and – distinctly – the right to protection of personal data in Article 8.

As helpfully pointed to in this article co-authored by Advocate General at the Court of Justice of the European Union, Juliane Kokott, data protection covers processing of all information on identified or identifiable persons; there is no doubt that in Antovic and Mirkovic v. Montenegro the video monitoring (and recording) – in spite of the blurred character of the footage – did amount to processing of information of identifiable persons.

The right to respect for private life, in contrast, concerns only information concerning the person’s private life, and in Antovic and Mirkovic v. Montenegro it is not obvious (as the 4:3 split shows) whether the private lives were affected, or not.

If the Convention had a provision on the right to the processing of personal data and the applicants had invoked such provision, all judges would have surely agreed that the use of video surveillance did interfere with the right (and then they would have examined whether the interference was in accordance with the national law and proportionate). However, the judges did not analyze the facts under the rubric of the right to protection of personal data. Even when the majority of the four judges relied on the finding of the Montenegrin Data Protection Agency that the video surveillance was not in accordance with the Personal Data Protection Act, the purpose was to determine whether the Convention right to respect for private life – and not a standalone right to protection of personal data – was infringed. The minority did not make any reference whatsoever to Montenegrin Personal Data Protection Act.

In the national contexts, in Europe, the distinction between the right to respect for private life and the right to protection of personal data does not have to entail major consequences, because legislation often protects both rights. Nevertheless, Antovic and Mirkovic v. Montenegro is a reminder that the two rights are not identical. At least before the ECtHR, the difference may be of significance, as considerable challenges may stand in the way to showing that any interference with the right to respect for private life in fact occurred.