In the recent Scottish case of BC and others v Chief Constable Police Service of Scotland and others, the Court of Session considered the inclusion of personal WhatsApp messages in an investigation into alleged breaches of professional standards.

What Happened?

During an investigation into sexual offences at Police Service Scotland (PSS), a series of offensive group chat WhatsApp messages were discovered on an officer's smartphone. The messages were described as "sexist and degrading, racist, anti-Semitic, homophobic, mocking of disability" and showing a "flagrant disregard for police procedures by posting crime scene photos of current investigations."  They were passed to the Professional Standards Department within the PSS, and the officers party to the group chat were accused of misconduct.

Professional standards for police officers in Scotland refer to honesty and integrity, equality and diversity, discreditable conduct, and challenging and reporting improper conduct. They apply when officers are both on and off duty.

The officers argued that using personal WhatsApp messages to bring misconduct proceedings against them was a breach of their human rights, in particular their right to privacy.   

Article 8 of the European Convention on Human Rights

Article 8 provides that everyone has a right to respect for their private and family life, their home and their correspondence. Public authorities cannot interfere with this right except in accordance with the law and where necessary in the interests of public safety, the prevention of crime and the protection of the health, morals and rights of others.

Was the Right to Privacy Breached?

The court considered whether the officers had a reasonable expectation of privacy in the circumstances, and found they did not. Their right to privacy was limited by their duties under the professional standards for police, which applied at all times, including when the officers were off duty. The court found that, in joining the force, the officers accepted their right to privacy was limited to the extent set out in their professional standards, so that if they acted in a way that contravened those standards, they could not reasonably have an expectation of privacy.  

Best Practice

The use of private messages in the context of workplace investigations is a thorny issue. For individuals who work in regulated sectors such as solicitors, doctors and financial service workers who are subject to professional standards, this case suggests there will be limits on the right to keep messages sent on personal accounts private. For individuals who work in unregulated sectors, a balancing exercise should be carried out, taking into account the particular circumstances including how a message was brought to the employer's attention, before deciding whether to include it in a workplace investigation. It may be appropriate to take individual advice should such a scenario arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.