In the case of BC and others v Chief Constable Police Service of Scotland and others (PSS), the Outer House of the Court of Session considered whether the PSS was entitled to use WhatsApp messages for misconduct proceedings against officers and whether it breached their right to privacy.
In 2016, a detective led an investigation into sexual offences within PSS. During this investigation, the detective reviewed messages sent via WhatsApp on a phone belonging to a suspect, who was a police officer. The messages formed part of two group chats between officers: one with 15 members and the other with 17.
The detective passed the messages to the Professional Standards Department within the PSS. The messages were described as "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". As a result, misconduct charges were brought against a number of officers.
The officers brought a petition in the Outer House of the Court of Session complaining that using their WhatsApp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of their Article 8 rights.
Article 8 of the European Convention on Human Rights
(ECHR) provides that:
- Everyone has the right to respect for their private and family life, their home and their correspondence.
- There shall be no interference by a public authority with the exercise of this right except as accords with the law and as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It is unlawful for public authorities to act in a way that is incompatible with the ECHR. Courts and tribunals must, as far as possible, give effect to primary and subordinate legislation in a way that is compatible with the ECHR.
The Outer House of the Court of Session refused the petition. The Court held that normally there would be an expectation of privacy for any messages sent via WhatsApp.
However, since the police are subject to professional standards which apply both on and off duty, their expectation of privacy is limited.
A failure to comply with those standards, as evidenced by the content of the messages, would likely interfere with the impartial discharge of that officer's duties or at least give that impression to the public. The court also considered whether a separate right to privacy existed in Scottish common law and concluded that it does, although neither it nor Article 8 were breached here.
Christine Jamieson, a Paralegal in our Employment team commented;
“While only a first instance decision, this case supports the position that there is a common law right to privacy under Scots law, in parallel with Article 8 rights.
“It is also one of the first decisions to consider how the content of WhatsApp messages might be used in a work context. The Outer House of the Court of Session made it clear that for the average individual, who does not work in a regulated environment, messages such as this will remain private regardless of how distasteful their content is.
“For employees in a regulated environment, the
position is less clear cut and WhatsApp messages of this kind may be able to be
used in internal disciplinary proceedings. Employers looking to rely on content
of this kind are recommended to take legal advice.”
