Intellectual Property Law

Hidden Video Cameras at the Workplace: is this a Violation of Privacy?

By Martha L. Arias

Technology is invading people?s space and depriving them of their right to privacy.  Installation of hidden video cameras at the workplace, for instance, is a current topic that deserves legal attention. Most employers, usually for security reasons, are installing surveillance systems at the workplace. Yet, some of these cameras are not conspicuously placed and may be directed to recording questionable activities. Is installing hidden video cameras at the workplace a violation of privacy? This article presents California?s Supreme Court position on this issue.

Consensual video surveillance by private parties is considered legal under state tort laws.  Thus, once parties consent to this surveillance at the workplace, there is no reasonable expectation of privacy.  Yet, the legal issue arises when employers secretly install cameras at the workplace.  In the California case of Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009), the Supreme Court of California was to determine whether an employer?s surveillance camera installed at the workplace, without the employee?s knowledge, constituted a violation of the employee?s reasonable expectation of privacy.

In Hernandez, the employer defendant placed surveillance cameras in plaintiff employees? offices at the workplace. The employer?s intention was to know who the person accessing sexually explicit websites was.  It seems that this person accessed the company?s Internet after office hours.  Plaintiff employees stayed after office hours and sometimes ?closed doors-changed clothing before leaving for after-work exercise. Also, plaintiffs were women and they showed each other their postpartum marks. These events were recorded.  Plaintiffs sued employer for invasion of privacy under state common law and state Constitutional principles, and for intentional and negligent infliction of emotional distress.  The trial court dismissed the case. The California Court of Appeal reversed.  The case went to California Supreme Court, which reversed the judgment of the court of appeal in so far as the privacy claim, and allowed plaintiff employees to proceed at trial.

The Supreme Court held that a privacy violation based on common law tort of intrusion has two elements: ?(1) the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy.? (2) ?the intrusion must occur in a manner highly offensive to a reasonable person.? ?These limitations on the right to privacy are not insignificant. Nonetheless, the cause of action recognizes a measure of personal control over the individual's autonomy, dignity, and serenity. The gravamen is the mental anguish sustained when both conditions of liability exist.? Further, the Court held that the defendant must have penetrated a zone of physical or sensory privacy or obtained unwanted access to data by electronic or other means, in violation of the law or social norms.  In any circumstance, the expectation of privacy must be objectively reasonable.  This reasonableness is linked to three factors: the identity of the intruder, the extent to which other persons had access to the subject place, and the means by which the intrusion occurred.  

Regarding the right to privacy under California Constitution, the Court held that its elements are similar to those under common law tort.  The plaintiff must meet three requirements: (1) he must possess a legally protected privacy interest.  This includes conducting certain activities without observation, intrusion, or interference as established by social norms; (2) plaintiffs? expectation of privacy must be reasonable.  Here, we have to examine customs, practices, and the setting surrounding particular activities, as well as notification and consent to the intrusion; (3) plaintiff must show that the intrusion is serious in nature, scope, and actual or potential impact as to violate social norms.

After setting the standards for privacy violations under state common law torts and state Constitutional law, the court held that a jury could have found that the required intrusion existed.  Therefore, the court held that, although plaintiffs? privacy in a shared office were not absolute, ?they had a reasonable expectation of privacy under widely held social norms that the employer would not install video equipment capable of monitoring and recording their activities?personal and work-related?behind closed doors without their knowledge or consent.?

Full post as published by IBLS Internet Law Blog on October 14, 2009 (boomark / email).