Case Law, Scotland: B C and Ors v Chief Constable of Police Service of Scotland, Police WhatsApp Group chats not private – Darryl Hutcheon

8 08 2019

A police force is conducting a criminal investigation into a sexual offence alleged to have been committed, as it happens, by one of its own officers. The force seizes his phone and comes across WhatsApp group chats in which several other officers in its service have posted offensive messages.

The messages are “blatantly sexist and degrading, racist, anti-semitic, homophobic, mocking of disability and [include] a flagrant disregard for police procedures by posting crime scene photos of current investigations”. Can the force lawfully pass the messages to its disciplinary unit to pursue misconduct proceedings against those who wrote the offensive posts?

In B, C & Ors v Chief Constable of Police Service of Scotland & Ors [2019] CSOH 48, the Outer House of Scotland’s Court of Session has answered “Yes”.

Judgment

The claimants argued that in using their WhatsApp messages to bring misconduct proceedings the police force had violated their article 8 ECHR rights as well as their privacy rights under Scottish common law.

Lord Bannatyne’s judgment affirms, for the first time, that Scottish common law recognizes a right to privacy which is on all fours with the right recognised in England and Wales since Campbell v MGN [2004] 2 AC 457 [126]. Like its English counterpart, the Judge considered that the Scottish common law right should be interpreted and developed in ways which reflect the values underlying ECHR rights [113-114, 126].

In his substantive analysis (which drew no distinction between the analysis under article 8 and common law) Lord Bannatyne concluded that while article 8 ECHR was engaged, the officers had no “reasonable expectation of privacy” in respect of the messages. He reached that view despite (a) acknowledging that paper or electronic correspondence could form part of the “zone of interaction” which attracts a reasonable expectation of privacy [129]; (b) affirming that WhatsApp groups did represent a “confidential context” involving messaging between closed groups of individuals, particularly where (as here) the  group participants were colleagues known to each other [137 and 151]; and (c) finding that the protected zone of interaction covered messages made in a private context even if they were of an abhorrent nature [157].

Nevertheless the Judge considered that as police officers, the claimants were in a special position, since in entering the force they had willingly made themselves subject to the specific standards of conduct which govern police behaviour (as set out in the applicable 2014 Regulations) [165]. He characterised this as the officers having accepted a special limit on the scope of their right to privacy, which he defined as follows: “if [the officers’] behaviour in private can be said to be potentially in breach of the Standards in such a way as to raise doubts regarding the impartial performance of their duties then they have no reasonable expectation of privacy.” [168, 170]. Since in this case the messages could reasonably be characterized as insulting, discriminatory and disdainful of police procedures, they did both breach the Standards and raise doubts about the claimants’ ability to discharge their duties into question. As such the petitioners had no reasonable expectation of privacy [166].

The Judge felt this conclusion was bolstered by the fact that under the applicable Standards, police officers were under a positive obligation to report violations by other officers. As such officers who posted in the group must have known that they faced a real risk of being exposed [172].

For completeness, the Judge went on to find that the police force did act “in accordance with the law” in passing messages to an internal disciplinary unit [175]. Even though no legislative enactment specifically permitted the disclosure of the messages for the purposes of disciplinary proceedings, the police had the power to make such disclosure where this was in the public interest and had the purpose of protecting the public [185, 188].

The Judge also concluded obiter that even if there was an interference, it pursued the legitimate aims of achieving public safety and preventing disorder or crime. Those engaging in the behaviour in question would likely lose the confidence of the public and this would in turn harm the ability of the police to tackle crime and disorder [198, 199]. Moreover, the interference was proportionate; in this regard, the Judge relied again on the importance of public confidence in the police and the absence of less intrusive measures which would achieve the same ends [201].

Comment

While it is plainly desirable that police officers exhibiting offensive and discriminatory attitudes are held to account, the legal route taken by Lord Bannatyne is surprising. The officers were sending messages in their free time from their personal electronic devices, which most people would surely see as a prima facie “private” activity. The effect of finding that the officers had no reasonable expectation of privacy in relation to their offensive WhatsApp messages is that the police force’s actions did not need to be subjected to any proportionality assessment (with the obvious checks on arbitrary or unnecessary actions which such assessment provides).

It is also somewhat surprising that the Court did not deal with the reasoning of the European Court of Human Rights in its Grand Chamber decision in Barbulescu v Romania (2017) 44 BHRC 17 or in its admissibility decision in Garamukanwa v UK (app. no 70573/17, decision of 6 June  2019). Both cases examined the application of article 8 ECHR in the context of employers dismissing employees because of messages sent on online platforms (and, in Garamukanwa, because of information found by police on a personal mobile phone). Both decisions underlined that a central consideration at every stage of the article 8 analysis is the extent to which an employee has had clear and specific notice that their employer may monitor or review the activity in question (see e.g. Barbulescu at [78] and [121]).

Seen in this light, Lord Bannatyne’s conclusion that officers agree to limit their privacy rights by the mere fact of entering a service governed by specific standards of conduct seems rather casual. Lord Bannatyne’s conclusions also seem to sit uneasily with the finding in Barbulescu that an employee had such an expectation regarding his conversations on a Yahoo Messenger account which the claimant’s employer asked him to set up and to use for work purposes, and which he used on a company computer.

In fairness to the Judge, his conclusion was explicitly based on the specific circumstances and role of police officers in society, and he strongly implied that in most other instances workers would have a reasonable expectation of privacy vis-à-vis their personal WhatsApp messages. Nevertheless, if Lord Bannatyne’s decision survives a mooted appeal, future courts will likely face lawyers seeking to extend his reasoning to many other situations. After all, police officers are far from alone in offering a public service whose effectiveness relies on public confidence or in being subject to written codes of conduct requiring high standards of behaviour. In fact, since avoiding a perception of (for example) discriminatory attitudes is central to the success of almost any public, private or third sector service in modern Britain, the limits of the reasoning set out by Lord Bannatyne are far from obvious.

In sum, future courts will need to carefully reflect on whether the reasoning in B, C and others is a safe guide when analysing how privacy rights constrain what employers can do in respect of employees’ social media use away from work.

Darryl Hutcheon is a member of Matrix Chambers and an author of Online Publication Claims: a Practical Guide. 


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