The labour law scholarship is facing the so-called datafication of workplaces and a corresponding increase of worker surveillance [1]. By datafication, in short, we can refer to the understanding of people, their actions, and work environments through data. Vast networks of sensors and AI are able to give employers a comprehensive view of their workforce on and off company property [2]. Software such as Controlio and Interguard can reconstruct typing activities and sites visited by employees on company laptops. AI-enabled cameras monitor drivers, alerting them if they notice a lack of concentration on driving. Again, telephone operators’ voices can be analysed by software that instantly alerts them if the tone is not friendly or sufficiently welcoming to customers [3].

This extensive exposure to the employer’s gaze calls for a new balance between the right to privacy of employees and the freedom of an employer to organise its economic activity [4]. What I would like to analyse here is one element in particular. Does the use of such invasive surveillance technologies reflect a 'pressing social need’ (Handyside v. The United Kingdom, §48), i.e. a necessary mean to achieve legitimate and proportionate purposes of the employer?

This is a topical question, since the Court hasn’t had yet an opportunity to pronounce on the (nowadays spread) use of such technologies at work. In recent years in cases such as Bărbulescu v. Romania and Antović and Mirković v. Montenegro (2017 and 2018), the Court did not recognise the monitoring of company emails and the use of cameras to assess work performance as a 'pressing social need’. That is, the employer could have pursued the same ends in a less invasive manner. The evaluation about the necessity of specific surveillance means has, however, led to a different outcome in other case law: covert surveillance may be justified if no other means would have been available to ensure the protection of company properties (Lopez Ribalda and others v. Spain or Köpke v. Germany). The latest case on workplace surveillance (December 2022) is supporting the latter position from the ECtHR: covert surveillance reflects a pressing social need when it meets the requirements of protecting company assets and verifying compliance with working hours (Florindo de Almeida Vasconcelos Gramaxo v. Portugal). The latter pronouncement yet is problematic as regards the assessment of the pressing social need; specifically, on the recognition of the existence of a less invasive means of surveillance compared to the one found to be legitimate. Clarifying and criticising this stance is therefore important to rethink the employer’s pressing social need in the times of AI surveillance.

A new case from the ECtHR endorsing covert surveillance

On 13 December 2022, the European Court of Human Rights (ECtHR) ruled again on worker surveillance (Florindo de Almeida Vasconcelos Gramaxo v. Portugal). The case concerned a pharmaceutical sales representative on whose company car a 24/7 GPS was installed to track his mileage and location. In doing so, the company aimed to verify compliance with 8-hour shifts and that he had visited the planned customers, as well as to compute the kilometres driven outside working hours to be charged to the employee. The monitoring therefore took place constantly, even outside working hours (§40).

In the particular case of the plaintiff, the employer installed a second hidden GPS, since after an investigation on his car a daily tampering at the end of work shifts was found; the first GPS was regularly switched off every day. The plaintiff was subsequently fired for using the car in his private time without the GPS switched on – ascertained by means of the second hidden GPS – as well as for not respecting the daily 8 working hours (§117).

In its ruling, the ECtHR found that the national authorities had not failed in their positive obligation to protect the employee’s private life (Art. 8 ECHR, §125): the Court of Appeal in the national proceedings had correctly ruled that the employer had not breached the duties of information and transparency under the Portuguese law. Moreover, the use of a GPS was found to be proportional with a legitimate aim and proven that no less intrusive means were available to achieve this aim. Yet, in the joint dissenting opinion issued by the Judges Motoc, Pastor Vilanova and Guerra Martins, the interference with the employee’s private life is described as ‘serious’, since Mr. Florindo had been tracked 24/7 for three years through the GPS (§10). Moreover, they point out that the Portuguese Data Protection Authority did indicate to the employer to use less intrusive means rather than a 24/7 GPS on a (also) private car (§17).

Urgent update needed: what is a pressing social need in an AI surveillance scenario?

What emerges from the Florindo case (2022) partly follows the Court’s position in the Lopez Ribalda case (2019). That is, when the protection of private property is at stake, the Court’s construction of the pressing social need is 'blurred’ by the employee’s unlawful conduct [5]. Even in the joint dissenting opinion in the Lopez Ribalda case, the judges expressed a lack of ‘technological awareness’ of modern surveillance by the majority of their colleagues. Art. 8 ECHR and the Court are ‘living instruments’: they ought to recognise the influence of modern technologies and develop more adequate legal safeguards to secure respect for the private life of individuals (§2).

A pressing social need, moreover, does not have the flexibility of expressions such as 'permissible’, 'ordinary’ or 'useful’ 'reasonable’ or 'desirable’. In this regard the Court, while a Member State retains a internal margin of appreciation, provides an European supervision about the impact on the enjoyment of the ECHR’s fundamental rights; thus shaping at the ECHR level what ought to be considered a pressing social need (Handyside v. The United Kingdom, §48-49).

Given the standard intrusiveness of the new AI tools, carefully assessing the existence of less intrusive means on workers’ private life should be strengthened in the future ECtHR case law; to avoid art. 8 ECHR being shadowed by the ‘new normal’ in workplace surveillance [6 and Bărbulescu v. Romania, §121]

In essence, studying the positions of the ECtHR on this issue and feeding the debate around the pressing social needs of surveillance is crucial. The normalisation of AI surveillance in workplaces is not necessarily a negative factor; however, reductions in privacy should not increase just because more tools are available and more convenient to use. Pressing social needs must be reconsidered to have not simply more surveillance, but quality surveillance that is closely linked to legitimate employer interests.

Courtesy of: Michele Molè, LLM, PhD Researcher in Labour Law, University of Groningen.

References

[1] Kristie Ball, Electronic Monitoring and Surveillance in the Workplace, Publications Office of the European Union, Luxembourg, 2021, doi:10.2760/5137, pp. 22-33.

[2] Oskar Gstrein, Anne Beaulieu. How to protect privacy in a datafied society? A presentation of multiple legal and conceptual approaches, in Philosophy of Technology, 35, 3 (2022). https://doi.org/10.1007/s13347-022-00497-4, pp. 2-3.

[3] Alex J. Wood, Algorithmic Management: Consequences for Work Organisation and Working Conditions, Seville: European Commission, 2021, pp. 5-6.

[4] Michele Molè, The Internet of Things and Artificial Intelligence as Workplace Supervisors: Explaining and Understanding the New Surveillance to Employees Beyond Art. 8 ECHR. Italian Labour Law E-Journal, 15(2), p. 87. https://doi.org/10.6092/issn.1561-8048/15598

[5] Lauren E. Elrick (2021) The ecosystem concept: a holistic approach to privacy protection, International Review of Law, Computers & Technology, 35(1), p. 43-45, DOI: 10.1080/13600869.2020.1784564

[6] Philippa Collins, The Right to Privacy, Surveillance-by-Software and the “Home-Workplace”, UK Labour Law Blog, 2020, https://uklabourlawblog.com/2020/09/03/the-right-to-privacy-surveillance-by-software-and-the-home-workplace-by-dr-philippa-collins/

ECtHR Case law