What’s that? Use of private WhatsApp chat in misconduct proceedings allowed

The Scottish Courts held that private communications such as WhatsApp messages may be used as evidence in misconduct proceedings where the individuals involved are subject to regulatory standards and where it is in the public interest to do so.

In BC and ors v Chief Constable Police Service of Scotland and ors [2019] CSIH 61 (a recent case heard in the Scottish Courts) it was upheld that the Police Service of Scotland (PSS) did not breach officers’ Article 8 privacy rights when using private WhatsApp messages on officers’ smartphones as a basis for misconduct proceedings.

What is Article 8?

Article 8 of the European Convention on Human Rights (ECHR) sets out that everyone has the right to respect for their private and family life, their home and correspondence and that there shall be no interference by a public authority with the exercise of this right except where legally required and where it is in the interests of national security, public safety etc. Public authorities, such as the police, must not act in a way that is incompatible with the ECHR and the courts and tribunals must try to give effect to the UK legislation in a way that is compatible with the ECHR.

In this case, the court had to decide whether the PSS breached Article 8 when it brought misconduct proceedings against police officers based on WhatsApp messages they had sent between themselves.

Facts

An investigation began in 2016 into sexual offences within the PSS. During the investigation, smartphones belonging to the officers were examined and degrading and inappropriate messages sent through WhatsApp were found. The messages were sent through two group chats between officers – one chat with 15 members and the other with 17.

The Professional Standards Department within the PSS reviewed the messages further and found that they had a flagrant disregard for police procedures and misconduct charges were brought against a number of officers.

The officers alleged that using their WhatsApp messages to bring non-criminal misconduct proceedings against them was in breach of their Article 8 rights and their right to privacy at common law. This argument put forward by the officers was rejected and the officers appealed to the higher court within Scotland.

Decision

The higher court held that the officers in question had no reasonable expectation of privacy in respect of the WhatsApp messages and there was no intrusion with their Article 8 rights. To determine whether there was a reasonable expectation of privacy, the court considered all the circumstances of the case including the content of the messages, the officers’ status and acceptance of certain restrictions on their private life, the recipients’ status and the fact that the material was not discovered by the PSS by any covert method. The messages were discovered as part of a criminal investigation and therefore came to the PSS’ attention in a legitimate way.

The court also found that the use of messages was in accordance with the law and the use was necessary and proportionate. In particular, the court found that the level of intrusion was limited to the extent necessary to maintain the public confidence, especially as the information from the messages would only be disclosed to the regulatory body, for a limited purpose and did not contain anything of a personal nature in relation to any of the officers.

Lessons learnt?

Previously the courts and tribunals have followed the same line and been reluctant to find a reasonable expectation of privacy in electronic communications such as email or social media messages. This is the first case, however, which focuses on messages sent through personal WhatsApp accounts. The case demonstrates that this is an area of law continuing to acclimatise to the difficulties posed by social media and the digital world employers now find themselves in.

For those individuals subject to professional or regulated standards, the case suggests that there will be some instances where an employer or regulator can take action on the basis of otherwise private messages that are brought to their attention. This could include doctors, solicitors, barristers and other workers regulated in the financial sector. It could also extend to other sectors where the content of messages suggest a serious breach of professional standards that would be likely to impact the public’s confidence in the profession at large.

However, employers should note that the messages in this case were discovered through legitimate investigations into an alleged crime and the case does not address an employer’s capability to monitor or request access to employee electronic communications on private networks such as WhatsApp and social media sites.