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In this article, we discuss a case decided in the Scottish courts, but which, nevertheless, could have an impact on decisions made in the courts of England and Wales. The Outer House of the Court of Session considered whether the Police Service in Scotland could bring misconduct proceedings against a group of officers using WhatsApp messages, and the impact that this may have on the individuals’ right to privacy under the European Convention on Human Rights.
Article 8 of the European Convention on Human Rights (ECHR) provides that everyone has the right to respect for their private life. It also states that “there shall be no interference by a public authority with the exercise of this right except as accords with the law”.
The ECHR must be considered in parallel to domestic law, including the Human Rights Act 1998 and a variety of case law, all of which has led to the evolution of the Article 8 right over time. This is particularly significant with the rise of use in technology and the various social media platforms which can contain private information about individuals.
Whilst investigating sexual offences within the Police Service of Scotland (‘PSS’), a detective constable found messages sent via WhatsApp on a phone belonging to a suspect who was a police officer. The detective reviewed the messages and submitted them to the Professional Standards Department within the PSS. The PSS described the messages as including content that was “sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability” and having a “flagrant disregard for police procedures by posting crime scene photos of current investigations.”
Following the finding of these inappropriate messages, misconduct charges were brought against a number of officers under the Police Service of Scotland Regulations 2014. Under these Regulations, officers swear an oath to behave in accordance with the Standards of Professional Behaviour within them. These Standards include the requirement to act with honesty, integrity, equality and diversity, and to challenge and report improper conduct.
The officers who were subject to these misconduct proceedings brought a petition in the Outer House of the Court Session, complaining that the use of the WhatsApp messages in such proceedings was a breach of their Article 8 rights.
The Court addressed whether a right to privacy exists in Scotland, given that Article 8 does not supersede a right to privacy that might exist in common law. However, it was concluded that the right to privacy does exist, as it is a “core value inherent in a democratic and civilised state”.
The Court then addressed whether the officers could have a reasonable expectation of privacy in relation to the messages. It was found that an ordinary member of the public using WhatsApp could have a reasonable expectation of privacy. However, the officers are subject to the Standards and the 2014 Regulations. In becoming an officer, they have accepted that these will regulate their right to privacy. The officers were all exchanging messages with individuals they knew were also subject to the Standards. It was further noted that one of the purposes of the Standards is to maintain public confidence in the police.
Finally, the Court considered whether the interference in the officers’ right to privacy was justified. It was concluded that it was necessary for public safety. The content of the messages and the failure of the officers to adhere to the Standards was likely to lose the confidence of the public. The confidence of the public is essential for the success of police and so this breach was considered to have been justified.
The Court made it clear that, for the average individual, messages such as this will remain private. However, if individuals are subject to professional standards, or work within a regulated industry, there will be limits on their right to keep such messages private.