Graeme MacLeod: No absolute right to privacy on messaging platforms

Graeme MacLeod

Graeme MacLeod comments on a recent Inner House judgment in which police officers in a WhatsApp group lost an appeal against a decision to investigate them.

The case of BC v the Chief Constable of the Police Service of Scotland was pursued by a group of 10 Scottish police officers, all of whom were involved in at least one of two WhatsApp messaging groups, one called ‘Quality Polis’ and the other ‘PC Piggies’.

The discussions between the members of these groups were discovered by a fellow police officer who was investigating a serious sexual assault (which did not involve any of the 10 officers).

The messages were found on the mobile phone of a suspect in that investigation. The investigating officer suspected the members of the groups were police officers and reported the messages to her supervisors. These were passed on to the Professional Standards Department for investigation. The messages were described as “blatantly sexist and degrading, racist, anti-Semitic, homophobic, and mocking of disability.” There was further concern that the messages amounted to a “flagrant disregard for police procedures” as they reportedly included a number of crime scene photos of current investigations.

Misconduct charges were brought against the 10 officers who then petitioned the court for a ruling that, allowing the messages to be used in the misconduct proceedings would breach their rights of privacy.

The initial judgement for this case came in July 2019 when Lord Bannatyne ruled against the officers, stating they could have “no reasonable expectation of privacy” due to the “attributes which arise as a result of their position as constables”. The case was then appealed.

In reaching its verdict, the appeal court referenced the recent Supreme Court decision of HMA v Sutherland, a case concerning the use in criminal proceedings of evidence obtained by a paedophile hunter group. A member of the group had entered into online communications, posing as a 13-year-old boy, with Mr Sutherland, an individual suspected of being a sexual predator. The Supreme Court held that Mr Sutherland could have no “reasonable expectation of privacy” over sexual messages he believed he was sending to a 13-year-old child, with Lord Sales commenting that this sort of communication was not worthy of respect within the ECHR framework.

In the present case, the Scottish appeal court was equally unflinching in its comments about the moral content of the messages sent by the police officers. The court was clear that the content of the messages was relevant to the question of whether the officers had a reasonable expectation of privacy. The court emphasised that all factors should be considered in looking at that question including how any messages were obtained, their content, and whether they contained private personal information about either the author or third parties.

In this case, a significant factor the court relied on in deciding that the officers had no reasonable expectation of privacy, was that they had taken oaths to uphold the professional standards of their office, which included reporting colleagues for misconduct.

Interestingly, Lady Dorrian, giving the leading judgment, emphasised the need to maintain public confidence in the police, appearing to make a brief reference to the Black Lives Matter campaign when she spoke of “recent examples in this country and elsewhere” of what can happen when that confidence is put at risk.

The BC case is an interesting decision for all businesses, but particularly those operating in regulated sectors or in the public sphere. There is no absolute right to privacy. Who you are and what you say can affect whether your confidential communications can be kept private where there is a wider public interest at play.

The case has also, potentially, put the brakes on the development of more far-reaching private law rights to privacy in Scots law. Public authorities and media outlets who want to test where the limits lie may take some encouragement from it.

Graeme MacLeod is a partner at CMS

Tags: privacy

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