The Inner House of the Court of Session has considered in BC and others v Chief Constable Police Service of Scotland and others whether the Police Service of Scotland (PSS) was entitled to use WhatsApp messages as a legal basis for bringing misconduct proceedings against a group of officers, and whether it breached their right to privacy.
A detective constable led an investigation into sexual offences within the PSS. During the course of this investigation he found and reviewed messages sent via a WhatsApp on a phone belonging to a suspect who was a police officer. The messages formed part of two group chats between officers, and were passed to constables in the Professional Standards Department within the PSS. The messages were found to be "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". Misconduct charges were brought against a number of officers who then complained that the use of their WhatsApp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of their Article 8 rights to privacy under the European Convention on Human Rights (ECHR).
The Court concluded that there was a common law right of privacy in Scotland in the same way that there is in England (where common law has developed a right of privacy through breach of confidence). Although an ordinary member of the public using WhatsApp could have a reasonable expectation of privacy, the officers could not as they were subject to police standards of conduct and Regulations. One purpose of the standards and Regulations is to maintain public confidence in the police, and here the officers were under a positive obligation to report the type of messages that they were sending. The interference with the officers' right to privacy was justified under Article 8(2) of the ECHR as it was necessary for "public safety", and anything exposing a mind-set where the public's right to be treated fairly is called into question would put public safety at risk.
In rejecting the officers' appeal against the decision of the Outer House of Session the Inner House said that the Outer House had not concluded that there could be no private life for a serving policy officer, but merely that the restriction was limited to those matters which were capable of suggesting that the officer was not capable of discharging his duties in an impartial manner.
Take note: This decision has a quite a narrow application and won't by any means give employers free rein to look at their employee's WhatsApp messages during the course of disciplinary proceedings. As the Court stated, an ordinary member of the public using WhatsApp will have a reasonable expectation of privacy that won't apply to police officers who are subject to certain standards of conduct.
