Right to privacy recognised in Scots common law for first time as judge dismisses action by police officers over private ‘WhatsApp’ messages

The court held for the first time that the common law right exists in Scots law, and that its nature and scope is similar to that protected under article 8 of the European Convention on Human Rights (ECHR).

The ruling by Lord Bannatyne ruling came in an action brought by a group of ten police officers against whom misconduct proceedings were raised after a detective investigating allegations of sexual offences against another constable came across a series of inappropriate and offensive “WhatsApp” messages.

The judge held that while common law of Scotland recognised a right to privacy, the officers could have “no reasonable expectation of privacy” in relation to the messages given their content and the standards expected of the police.

‘WhatsApp group chats’

The court heard that the petitioners “BC” and others raised judicial review proceedings against the Chief Constable of Police Scotland, seeking court orders to the effect that the use of texts sent via the electronic private messaging system for the purpose of bringing misconduct proceedings over allegations of non-criminal behaviour was “unlawful” and/or “incompatible” with their rights to respect for their private and family life in terms of article 8 ECHR.

The officers were also seeking interdict to prevent the respondents from conducting any misconduct proceedings against them on the basis of, or involving the use of, the WhatsApp group chat messages.

The court was told that in July 2016 a detective constable was engaged in an investigation into sexual offences, although none of the petitioners were persons of any interest to that investigation.

But in the course of the investigation the detective constable reviewed and recovered certain WhatsApp messages on a mobile phone belonging to the suspect, who was another constable within Police Scotland. 

The messages were said to be “blatantly sexist and degrading, racist, anti-semitic, homophobic, mocking of disability” and included “a flagrant disregard for police procedures by posting crime scene photos of current investigations”.

Having considered the messages, which were contained in “group chats” – messages shared privately among members of a closed group of individuals – the detective constable decided to pass them to other constables in the Professional Standards Department within the Police Service of Scotland.

Those messages were used and relied upon in order to bring misconduct charges against each of the petitioners under the Police Service of Scotland (Conduct) Regulations 2014 (SSI 2014/68).

‘Right to privacy’

However, the petitioners claimed that the use of the messages amounted to an “infringement of their common law rights of privacy” or separately an “interference” with their rights to privacy in terms of article 8 ECHR.

On the preliminary question of whether the common law of Scotland recognised a right of privacy, counsel for the petitioners pointed to the position in England where the courts had recognised and developed the concept of a common law right to privacy, most notably in relation to breach of confidence – as seen in the case of Naomi Campbell v MGN Ltd [2004] 2 AC 457.

While that case had not been expressly approved by the Scottish courts, it was an important case when considering the position in Scotland because the law of confidence was accepted in the case of Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122 as being the same north and south of the border.

It was argued that there were other Scottish authorities which implicitly recognised this right.

Turning to European Convention, it was submitted that the message fell within the scope of article 8 and that, having been exchanged between members of a closed group, would have given rise to a reasonable expectation of privacy.

By analogy, if a person invites a number of his friends to his house and thereafter this group of people has a discussion, it was submitted that the terms of such a discussion were in a “confidential context” and there would be a reasonable expectation of privacy on the part of those who took part in the discussion.

It was argued that the content of the messages was “irrelevant” – a right of privacy that only covered good behaviour was not a right at all, and it was wrong to suggest the merely because the standards set out in the 2013 regulations can apply to conduct in a police constable’s private life that the petitioners could have no reasonable expectation of privacy.

The petitioners further submitted that that the interference into their privacy was both “illegal and not in accordance with law”, as the initial legal intrusion for the purposes of the criminal investigation gave “no clear and accessible legal basis” for the use of the messages for a collateral purpose, namely the disciplinary proceedings against the petitioners.

It was also argued that even there was a justified legal basis for disclosure of the messages, the intrusion into the petitioners’ privacy was “neither necessary nor proportionate”.

‘Common law right’

The judge ruled that the right of privacy does exist in the common law of Scotland, but ultimately dismissed the petition.

In a written opinion, Lord Bannatyne said: “In the context of whether there is a right to privacy in Scots common law the above analysis of the English position is of assistance. The English courts have developed the cause of action of breach of confidence. In Scotland an action based on breach of confidence is a well understood remedy and the law in that field in Scotland has been explicitly accepted as being the same as in England.

“The English courts’ approach to the development of the common law of privacy in Campbell has been to use the values which form the basis of article 8 rights and to accept that these should be reflected in the common law.

“Accordingly, taking as a starting point the cause of action: breach of confidence and applying the above approach to Convention rights to that cause of action I am persuaded that the Scottish courts would reach the same conclusion as the English courts in respect to the issue of existence of a common law right of privacy.

“In addition I observe that given privacy is a fundamental right I think it highly likely that it exists in the common law of Scotland…Lastly, and most importantly, I am persuaded that the case law in so far as there is any in Scotland tends to support the existence of such a right.”

The judge also noted the obiter views expressed by Lord Bonomy in the case Martin v McGuinness 2003 SLT 1424, in which he said: “it does not follow that, because a specific right to privacy has not so far been recognised, such a right does not fall within existing principles of the law. Significantly my attention was not drawn to any case in which it was said in terms that there is no right to privacy”.

“These observations again tend to support the view that there is a right of privacy in the common law of Scotland,” Lord Bannatyne said.

He added: “The nature and scope of that right would I believe be the same as that protected in terms of Article 8 except that it would apply to bodies other than public authorities. [124] I therefore consider there is a nascent recognition of a common law right of privacy in the case law.

“I also find it noteworthy that there is no case in Scots law to which I was referred or to which Lord Bonomy was referred in Martin which either explicitly or implicitly is to the effect that no such right exists in Scots law.

“For all of the foregoing reasons I am satisfied that a right of privacy exists in terms of the common law of Scotland.”

‘Limited expectation of privacy’

While the ordinary members of the public using WhatsApp could have a reasonable expectation of privacy, for police officers that expectation was “limited”.

Lord Bannatyne explained: “The limitation can, I think, be described thus: if their behaviour in private can be said to be potentially in breach of the Standards in such a way as to raise doubts regarding the impartial performance of their duties then they have no reasonable expectation of privacy.

“There is a restriction on police officers’ private life and therefore their expectation of privacy. That restriction is in respect to the matters identified in the 2013 Regulations and the Standards which the officer has sworn to uphold. It is only in relation to these matters that there is a limitation on the officer’s privacy it is not a whole scale intrusion into his private life. Accordingly to achieve the underlying purpose of the Standards, namely: the maintenance of public confidence in the police, police officers have a limitation on their expectation of privacy as above described.

“The petitioners were exchanging messages within a group of people whom they knew were under a positive obligation to report messages of the type above described where originating from other constables. This must, when viewed objectively, have greatly increased the risk of disclosure of the messages by a member of the group. It is not an answer to this point to say: no member of the group disclosed. The fact is there was a duty to disclose incumbent on many of the members and in looking at the issue of reasonable expectation this is the relevant point.

“In conclusion, drawing together all of the various strands of the argument and having regard to all of the circumstances, I conclude that the petitioners had no reasonable expectation of privacy in respect of the messages. In summary that they had no such reasonable expectation of privacy arises from their holding the position of police officers and what flows therefrom as I have explained above. Accordingly no right exists in terms of article 8 or at common law.”

In the circumstances of this case there was a clear and accessible basis, in terms of article 8(2) ECHR, upon which the police could disclose to regulatory bodies the information which they recovered in the course of criminal investigations.

And the interference with their rights was “necessary” for “public safety” and the “prevention of disorder or crime”.

Lord Bannatyne concluded: “I observe that certain aspects of the behaviour displayed in the messages shows a mind-set where the public’s right to be treated fairly is called into question for example depending on their race, religion or sexuality. Once more an officer who holds these types of views is less likely to have the confidence of the public and the public safety would be put at risk by having an officer of that type…

“In these circumstances had the petitioners had a legitimate expectation of privacy the foregoing factors would have caused me to consider that the messages could nevertheless be disclosed to the disciplinary body. I believe the disclosure would have been proportionate.”