On 12 January 2016, the European Court of Human Rights made a decision which considered the right of employers to control the private correspondence of those whom they employ. This decision was followed by a considerable public outcry on social networks all around the world, including Georgia. The anxiety was due to materials published by the media which advised readers to be careful as their employers now had the right to control all types of their correspondence.FactCheck
attempted to verify the accuracy of this information at the request of its reader.
A Romanian national, Bogdan Barbulescu, who worked as an engineer for a private company from 2004, was fired by his employer in 2007. The reason for dismissal was given as his use of the internet for private purposes during working hours. This was strictly prohibited by Mr Barbulescu’s company’s internal code.
At the request of his employer, Bogdan Barbulescu created a Yahoo Messenger account and answered questions from clients using this application. However, monitoring determined that Mr Barbulescu wrote not only to clients but to his fiancée and brother as well. He denied the allegations as a result of which his employer presented a 45-page printed out version of the conversations after which he was fired. Mr Barbulescu, who believed that by controlling his private correspondence his employer violated the Constitution and the Criminal Code of Romania, appealed to the local court and demanded the decision about his firing be considered void. However, the court did not satisfy his appeal. The court of appeals did the same.
After several year-long unsuccessful lawsuits inside the country, Bogdan Barbulescu appealed to the European Court of Human Rights claiming that Article 8 of the European Convention on Human Rights (the right to respect for private and family life) had been violated. According to Article 8 of the Convention: "Everyone has the right to respect for his private and family life, his home and his correspondence." However, according to Point 2 of the same Article, this right is not absolute and can be suspended in certain conditions of public interest.
Whilst considering the appeal of an individual concerning Article 8 of the Convention, the Court uses a two-level test. First of all, the Court discusses whether or not the appeal definitely falls under the rights set out in Article 8 of the European Convention on Human Rights and only then considers if the right has been violated. In the case of a positive answer to this question, the Court will determine if the suspension of this right was legal, served a legal purpose and was a necessity for a democratic society.
As the decision of the aforementioned court case makes clear, according to the practice used by the European Court of Human Rights, the telephone calls made from the building of a company as well as letters and e-mails sent from the working place definitely fall under the rights to personal life and correspondence as set out in Article 8 of the European Convention on Human Rights. Hence, the Court was obligated to find out (using the tests) whether or not suspending the rights provided for by Article 8 of the Convention was justified.
According to the explanation of the European Court of Human Rights, the suspension of the rights to personal life and correspondence were set out in the company’s internal code in Bogdan Barbulescu’s case. According to the regulations, using the internet for private purposes during working hours was strictly prohibited. It should be pointed out that according to Mr Barbulescu’s employer’s statement, before this case, another employee was fired for using the internet, telephone and the photocopy machine for personal purposes after which all of the other employees were warned that they would be monitored. Hence, the employee should not have had a reasonable presumption that his correspondence was personal.
The court decision makes it clear that the Yahoo account was created at the employer’s request and whose sole purpose was to answer questions from clients. The Court believes that it is only reasonable for an employer to take interest in how effectively his employee does his job during working hours.
It should be noted that Bogdan Barbulescu’s employer only checked the aforementioned account and not any other materials or data on his computer. In addition, the monitoring had a limited time period (from 5 to 13 July). Based upon this, the Court deduced that the suspension of the right was proportionate.
Taking all of the abovementioned into account, the Court (six judges against one) concluded that Article 8 of the European Convention on Human Rights had not been violated and the state maintained a justified balance between the interests of the public and the individual.
Concerning this case, too, it is especially important to note the opinion of the one judge who was against the decision, Pinto de Albuquerque, who criticised his colleagues and said that they had neglected those facts that could have changed the court decision altogether. Specifically, the factual part of the court decision reads that according to his statement, the applicant was not aware of the company’s regulations. In addition, the judges did not focus upon the fact that no warning document signed by the employer was present in the case.
According to Pinto de Albuquerque’s statement, it is important that the suspension be legal and for the respective law to be transparent. A regulation which provides for the interference of an employer in the private life of an employee should not be vague but, rather on the contrary, it should express the limits faced by an employer in monitoring the correspondence of his employee, its nature, the time period of the monitoring and the employee must be familiar with this regulation. Without this, it means that an employee not only sells his work but his private life as well. In addition, according to Mr Albuquerque, the court decision does not show why the suspension was necessary and proportionate.
It should be noted that the court decision is not final and can be reviewed by the Court’s Upper Chamber. Hence, there is a chance that the Upper Chamber will take the opinion of the opposed judge into account as well and set out more specific standards for an employer’s interference in the private life and the correspondence of his employees.
However, it should also be noted that the current decision of the court should not be a cause for alarm because an employer will be able to control the private correspondence of an employee. According to the decision, the employee should first of all be informed of the possibility of monitoring his correspondence and of the fact that computers and the internet in the workplace must not be used for private purposes (after which the employee himself will be running the risk of exposing his private correspondence). In addition, the Court stipulated that the control from the employer must have a certain legal purpose and must be necessary and proportionate for a democratic society.
The information covered by various media sources that according to the 12 January 2016 decision of the European Court of Human Rights (which is not final and can be reviewed by the Upper Chamber) an employer will be authorised to completely control the social network correspondence of his employee during working hours (using any means) is false and only confuses the public. This specific decision was presupposed by the facts in a specific case and does not mean that same decision will be made for all such cases.
The most important in the decision is the test which the Court uses to determine whether or not the rights provided for by Article 8 of the European Convention on Human Rights were, in fact, violated. According to this, an employee should be informed of the possible monitoring of his private correspondence during working hours. In addition, the monitoring of the correspondence must have a certain legal purpose and be absolutely necessary for a democratic society.Hence, the information that an employer can control the social network correspondence of his employees is FALSE.