Is there a right to privacy in Scotland? If so, does it apply to WhatsApp group chats?

WhatsApp needs little introduction. Since its launch in 2009, it has risen to become one of the most popular and frequently used apps in the world. By the end of 2017, it boasted 1.5 billion monthly users across more than 180 countries. It was also one of the first free messaging apps to boast end-to-end encryption. This means, “only you and the person you’re communicating with can read what’s sent, and nobody in between, not even WhatsApp.

So far so good. But what happens if somebody in your WhatsApp group chat shares the messages with somebody outside of the group?

This was the nub of the issue considered by the court in the case of B C & Others v Chief Constable Police Scotland & Others – see here for the judgment. We previously reported on a preliminary point that arose in the case last year – see here for the link to that article – when the judge decided the case should be allowed to proceed to a full hearing.

The Facts

In brief, Police Officers sought judicial review of a decision by the Professional Standards Department of Police Scotland to allow WhatsApp group chat messages to be produced in disciplinary proceedings that were brought against them.

The Legal Issues

The Police Officers sought orders from the court: declaring that the use of the WhatsApp messages was unlawful because it breached their common law right to privacy; and that it was incompatible with their right to respect for their private and family life in terms of Article 8 of the European Convention on Human Rights. This post will focus on the former argument.

For other reasons, the Police Officers were ultimately unsuccessful. However, the judgment has significantly developed the law of privacy.

Is there a common law right to privacy in Scotland?

According to the judge, yes. He recognised that “there is a common law right of privacy in Scotland.” In coming to this conclusion, the judge considered the case law from both the English and the Scottish courts.

In England, the courts have developed the common law to develop a right of privacy through a breach of confidence (the misuse of private information). A recent high profile example of this legal remedy being relied upon is the case of the Duchess of Sussex, Meghan Markle, suing the Mail on Sunday for, amongst other things, a breach of confidence. The newspaper published parts of a letter that she wrote to her father. We will provide an update on this case once the outcome is known.

In the present case, the judge was persuaded that the Scottish and English courts would reach the same conclusion. He was also of the view “there is a nascent recognition of a common law right of privacy in the [Scottish] case law.”

Is there an expectation of privacy in a WhatsApp group chat?

The judge had no hesitation in answering this question affirmatively. In reaching the answer to this question, the judge considered a more traditional form of group chat to be no different from an electronic one: “because one has a chat with eight friends in one’s house rather than one friend I do not think that it follows that one no longer has a reasonable expectation of privacy. Having a ‘group chat’ within a defined group of persons is I consider no different.”

The judge decided that, given the characteristics of WhatsApp, a reasonable expectation of privacy arose. He contrasted it with other social media platforms where any member of the public can gain access to the content of the platform and thus the information is entirely open and public. In contrast, the membership of a WhatsApp group is “controlled”. It is this control over the membership of the group that is key to the reasonable expectation of privacy arising in this situation.

Implications

It is clear that the legal remedy for a breach of confidence can apply to both traditional and digital forms of ‘correspondence’. The ability to have a group chat on WhatsApp (or by extension another digital platform) does not undermine the reasonable expectation of privacy. Accordingly, a claim for breach of confidence can be made if the information is shared outside the group.

As the use of WhatsApp messaging becomes more and more widespread in the workplace, employers will need to have regard to their use of these messages in an employment context. The court was clear that the messages of the average individual, who is not regulated by a professional body like the Police Officers are, will remain private regardless of their content. But, those individuals who are held to a professional standard or code of conduct (such as doctors, nurses, barristers, teachers etc.) are at risk of having their messages exposed to their regulator in respect of any disciplinary proceedings brought against them.

The case also has implications because of the recognition of a common law right of privacy. It remains to be seen how this “nascent” right will develop.

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