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8 Sep 2020

Philippa Collins, UK Human Rights Blog

The right to privacy, surveillance-by-software & the “home-workplace”

... Lockdowns proved to be an opportunity for the technology sector to demonstrate that their products can ... [provide] employers with the capacity to monitor closely their workers – wherever they may be working. ... Packages such as Hubstaff, ActivTrack and the concerningly-named Sneek offer employers the ability to monitor your minute-by-minute activity, see what websites you access (and even what you typed on them, via regular screenshots), and watch you as you work through webcam surveillance. These standard options can be complemented in some instances with GPS tracking, audio recording of the employee and covert monitoring capacities... But what are the implications for the employee subjected to these measures? How should we conceive of their right to a private life and a home life whilst work is at home and employer monitoring has entered via the back door?

...The sudden proliferation of working from home and the associated increase in interest in online surveillance tools present a new challenge for the right to privacy... Despite the clear authority that has developed at the European level... the judiciary in the UK still struggle to appreciate fully that an individual enjoys a right to their private life even in public spaces shared with others.

The use of electronic surveillance of workers in the home thrusts the previously public life of the workplace deep into the private sphere of the individual... The extent of this monitoring goes well beyond the eight-hour working day, which we might consider as a standard under the relevant International Labour Organisation Conventions.

... The primary way that the ECtHR could reconcile the clashing priorities and mediate between the need for privacy at home with the employer’s business needs would be through their discussions of the employee’s ‘reasonable expectations of privacy’.