WhatsApp is one of the most popular messaging apps in the world. Among its many features, messages sent between the app's estimated 1.5 billion users are subject to "end-to-end" encryption. This means that office gossip, cat photos and selfies shared on the app should be safe from the prying eyes of third parties.

But what happens if messages sent in a private WhatsApp group end up in the hands of a third party – specifically an employer who is conducting an investigation into one member of the group? Can the group messages be relied upon to form the basis of misconduct charges against other members of the group?

This was the question that arose in the recent case of BC and others v Chief Constable Police Service of Scotland.

The factual background

The case began with a police investigation into a constable suspected of committing sexual offences. The investigating officer came into possession of the suspect's mobile phone. On reviewing its contents, the investigating officer came across messages sent between several police officers in a private WhatsApp "group chat".

Some of these messages, although not relevant to the original purpose of the investigation, revealed potential misconduct by other officers. The investigating officer referred the messages to the Professional Standards Department within Police Scotland. After reviewing these messages, the Professional Standards Department brought internal misconduct charges against several officers (the "accused officers").

The legal issue

According to the accused officers, these messages were the only evidence which the Professional Standards Department sought to rely on in relation to the misconduct proceedings. If these messages were deemed off-limits, the misconduct charges would likely have to be dropped. So the accused officers turned to the courts. They sought an order, by way of judicial review, to prevent the Professional Standards Department from using the messages.

The nub of the accused officers' legal argument was that since the messages were sent in a private group, their use in the context of misconduct proceedings against them amounted to a violation of their privacy.

Across the Atlantic in the United States parties often seek to have evidence excluded from proceedings on the basis that the way in which it was obtained constituted an invasion of their privacy. For instance, in a big win for privacy advocates, the United States Supreme Court recently held that in order to protect individuals' privacy under the Fourth Amendment to the Constitution, the police will normally require a warrant to access mobile phone location records from phone companies.

English law is catching up to the need to safeguard privacy, with cases alleging violations of privacy arising quite frequently in recent years. The most high-profile recent example was the case of Sir Cliff Richard against the BBC. Sir Cliff was awarded £210,000 due to the BBC's and South Yorkshire Police's violation of his privacy.

By contrast, cases in which parties have sought to rely upon a right to privacy have been extremely rare in Scotland. This is one of the first Scottish cases to raise the issue directly.

Decision and implications

The court had no hesitation in accepting that the group chat was private. The accused officers had clearly not intended the messages to be publicised to a wider audience. In addition, the court accepted that the messages had no bearing on the original investigation relating to alleged sexual offences.

However, the court indicated that the question whether reliance on the messages in the context of misconduct proceedings would amount to a violation of the accused officers' privacy "raises a difficult question of substantive law". The answer will depend on both rules of evidence and "issues of confidentiality and privacy both at common law and, no doubt, under the provisions of ECHR". It was not an issue which the Professional Standards Board could easily resolve without guidance from the court.

While the court did not come to a final determination in this decision, the court allowed the accused officers' petition for judicial review to proceed. A final decision is to be expected in the coming months.

The decision could have significant implications for the development of the Scots law of privacy. The court has the opportunity to confirm that individuals do, in certain situations, have a right to privacy, both at common law and also in accordance with the European Convention on Human Rights. Such a step would bring Scots law into line with English law and likely form the foundation stone for future breach of privacy claims being raised in Scotland.

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