As a viewer of  “Line of Duty” and the daughter of a Police Officer who looked into complaints and discipline,  I often question just  how true the stories portrayed in the programme actually are.

However, having recently reviewed the decision of Lord Bannatyne in the Court of Session on whether or not Police Officers have a right to privacy over their Whatsapp messages I am now realising that life does imitate art, or is it the other way round?

In the case of B.C. & Others v. The Chief Constable, Police Service of Scotland & Others, the Court of Session had to consider whether the Police Service of Scotland was entitled to use Whatsapp messages as a legal basis for bringing misconduct proceedings against a group of officers and whether their right to privacy had been breached.

Before going any further it is important to remember what the right to privacy is in terms of the European Convention on Human Rights.

Article 8 says:-

1. “Everyone has the right to respect for their private and family life, their home and their correspondence.
2. 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 wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for protection of the rights and freedoms of others.”

In this case, this right had to be set against the professional standards applicable to Police Officers in Scotland.  The Officers swear an oath to “behave in accordance with the standards which apply when the Officer is on or off duty.”  The standards refer to, among other things, “honesty and integrity, equality and diversity, discreditable conduct and challenging and reporting improper conduct.”

So what had happened?

A Detective Constable had headed up an investigation into sexual offences within the Police Service of Scotland.  While conducting that investigation, the Detective found and reviewed messages sent via Whatsapp on a phone belonging to a suspect who was a Police Officer.  The messages were part of two group chats between Officers. One group had 15 members and the other had 17.

The Professional Standards Department within the Police Service characterised the messages as being “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.”

That finding meant that misconduct charges were brought against a number of the Officers involved in the Whatsapp group.

Those Officers then raised an action in the Court of Session complaining that using their Whatsapp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of Article 8 rights.

What did the Court say?

In short, the Court did not agree that Police Officers’ article 8 rights had been breached.

In making that decision Lord Bannatyne asked the following questions:-

1. Was there a common law right to privacy in Scotland?

He concluded that “Since the right to privacy is a core value inherent in a democratic and civilised state, it is a fundamental right and highly likely that it exists in Scotland.”

So yes, there was such a right.

2. Did the Officers who were involved in the Whatsapp messaging groups have a reasonable expectation of privacy?

In making his decision on that, Lord Bannatyne compared an ordinary member of the public to a Police Officer.  He observed that

(i)         “Correspondence between individuals, either by way of paper or electronic communication can form part of “the zone of interaction” and therefore Article 8 would apply.”

(ii)        “The ability to have a group chat on Whatsapp does not undermine the reasonable expectation of privacy.”

He compared the use of a Whatsapp group to having a chat at home with eight friends where one would ultimately expect that there would be a reasonable expectation of privacy.  He then said that “while the participant on a Whatsapp group chat may make public the content of that group, it does not undermine the individual’s reasonable expectation of privacy. Exchanging private information in any context carries the risk of a breach of confidence and the individual’s expectation may turn out to be misplaced.  However, that does not mean that they do not have that expectation in the first place.”

(iii)       He also looked at where the messages had been shared.  The Officers had trust and confidence in each other as members of the group and as such they could have a reasonable expectation of privacy.  The context in which the messages were sent formed the “zone of interaction which engages Article 8.”

However the members of the group had forgotten what their roles in fact were and that by becoming an Officer they had accepted that their right to privacy is limited to the Police Regulations.  The purpose of the standards is to maintain public confidence in the Police.  He said that the Officers were exchanging messages within a group of people whom they knew were under a positive obligation under the standards to report the type of messages that were being sent.  That fact alone increased the risk of disclosure by a member of the group.

3. Was there a justified legal basis for looking at the messages?

Lord Bannatyne took the view that it was necessary for “public safety” given the responsibility the Police Officers had, under Article 8.2 for the messages to be looked at?

What does that mean for your employees who are sending Whatsapp messages?  Are they acting in the line of duty?

The answer to those questions ultimately turns on what the nature of the work is.  Lord Bannatyne made the point that for the average individual, who doesn’t work in a regulated environment messages such as this will remain private, regardless of how distasteful their content is.  However, for individuals subject to professional standards or working in otherwise regulated industries there will be limits on the right to keep such messages private.  That would include Solicitors, Barristers, Doctors, financial services workers.  It could also extend to individuals working in many other sectors, so for example, the charities sector.

That therefore means that you should be reviewing your own internal policies to ensure that your employees are clear on what they can and cannot do when it comes to posting workplace discussions.

I have said for many years now that social media, in whatever form, whether that be Facebook, Whatsapp messages, Instagram or Snapchat, has effectively replaced the after work drinks on a Friday night where disgruntled employees voice their moans about their bosses.

You should therefore ensure that your employees are given policies clearly setting out what standard of conduct is expected of them to ensure that your business reputation is protected.

If you have any questions on social media and you wish to review the situations in which your employees are conducting themselves on such forums, then please contact our Julie Sullivan.