Do you correspond on personal questions from your work computer? Do you know what the European Court thinks about this?
The European Court is going to reconsider its decision on the dismissal case for using Yahoo messenger for personal correspondence. The new solution will be interesting in the light of recent news about the development of a corporate mobile communications monitoring system by InfoWatch , which is owned by Natalia Kasperskaya.
In the resolution BĂRBULESCU v. ROMANIA (no. 61496/08) dated January 12, 2016. The European Court found no violation in connection with the dismissal of an employee of the company for using personal Yahoo messenger in the workplace. The case was referred for review to the Grand Chamber of the Court on 6 June. This means that the conclusion reached by the Court earlier may be changed.
The case concerned the dismissal of the heating equipment sales officer for correspondence on personal topics in the Yahoo messenger. The messenger asked him to establish the company itself to communicate with customers on business issues. A 36-year-old manager began to keep in it a correspondence with his brother and bride on personal matters.
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The company has made claims to him about the use of the Internet in the workplace for personal purposes. The employee wrote in response that he did not use Yahoo Messenger for personal use. Then the company presented him with a printout of his correspondence in this messenger on 45 pages, where his personal messages were also met. After that, this employee was dismissed for violating the internal rules of the company, which prohibited the use of computers and company equipment for personal purposes. It should be noted that before this, for the same reason, another employee of the company was dismissed and employees were warned that the company was monitoring their actions on the Internet.
Then Bogdan Barbulesku appealed to the Romanian court and asked to recognize his dismissal as illegal, because the company violated the inviolability of his correspondence (which is protected by article 8 of the European Convention on Human Rights). The company won this case. The courts concluded that the monitoring of correspondence was the only way to ensure control over the work of staff, the security of the IT system, the protection of trade secrets and prevent illegal actions of employees on behalf of the company. The company was favored by the fact that employees were warned in advance about the monitoring being carried out.
After losing in the Romanian courts, Barbulescu complained to the European Court that the national courts failed to protect his right to privacy and correspondence. In its response, the Government of Romania, among many other arguments, drew attention to the absurdity of the applicant's position: he complained about the violation of his right to privacy of personal correspondence and at the same time claimed that he did not conduct personal correspondence with Yahoo.
In the practice of the ECHR, telephone calls from the workplace and emails from the working mail are covered by Article 8 of the Convention [1]. The ECtHR noted that one of the main differences of this case from other similar cases is the fact that the company had internal rules that categorically forbade the use of computers and other equipment for personal purposes.
But the consideration by the European Court of this complaint was limited only to checking how balanced and comprehensive analysis of the dispute was conducted by the Romanian courts. This dispute concerned the actions of a private company for which the state cannot be held responsible under the Convention. Therefore, in this case, the responsibility of the state is limited only to the fulfillment of its obligations to ensure the protection of human rights through the adoption of relevant laws and ensuring justice in the event of a dispute (the so-called positive obligations). Therefore, the ECtHR analyzed how the Romanian authorities fulfilled these requirements. In the judgment of the case, the Court decided that the national courts duly considered the dispute: they listened to all the arguments of the parties, analyzed them in detail and came to reasoned conclusions on all the issues raised by the parties.
True, the position of the European Court and its arguments may change. But in any case, the control of employee correspondence can only be carried out on the basis of a law that should provide for the goals of such control, and these goals should be consistent with the interests of protecting personal correspondence from unwarranted and arbitrary interference.
[1] Amann v. Switzerland [GC] (no. 27798/95), Halford v. the United Kingdom (25 June 1997), Copland v. the United Kingdom (no. 62617/00).
In the resolution BĂRBULESCU v. ROMANIA (no. 61496/08) dated January 12, 2016. The European Court found no violation in connection with the dismissal of an employee of the company for using personal Yahoo messenger in the workplace. The case was referred for review to the Grand Chamber of the Court on 6 June. This means that the conclusion reached by the Court earlier may be changed.
The case concerned the dismissal of the heating equipment sales officer for correspondence on personal topics in the Yahoo messenger. The messenger asked him to establish the company itself to communicate with customers on business issues. A 36-year-old manager began to keep in it a correspondence with his brother and bride on personal matters.
')
The company has made claims to him about the use of the Internet in the workplace for personal purposes. The employee wrote in response that he did not use Yahoo Messenger for personal use. Then the company presented him with a printout of his correspondence in this messenger on 45 pages, where his personal messages were also met. After that, this employee was dismissed for violating the internal rules of the company, which prohibited the use of computers and company equipment for personal purposes. It should be noted that before this, for the same reason, another employee of the company was dismissed and employees were warned that the company was monitoring their actions on the Internet.
Then Bogdan Barbulesku appealed to the Romanian court and asked to recognize his dismissal as illegal, because the company violated the inviolability of his correspondence (which is protected by article 8 of the European Convention on Human Rights). The company won this case. The courts concluded that the monitoring of correspondence was the only way to ensure control over the work of staff, the security of the IT system, the protection of trade secrets and prevent illegal actions of employees on behalf of the company. The company was favored by the fact that employees were warned in advance about the monitoring being carried out.
After losing in the Romanian courts, Barbulescu complained to the European Court that the national courts failed to protect his right to privacy and correspondence. In its response, the Government of Romania, among many other arguments, drew attention to the absurdity of the applicant's position: he complained about the violation of his right to privacy of personal correspondence and at the same time claimed that he did not conduct personal correspondence with Yahoo.
In the practice of the ECHR, telephone calls from the workplace and emails from the working mail are covered by Article 8 of the Convention [1]. The ECtHR noted that one of the main differences of this case from other similar cases is the fact that the company had internal rules that categorically forbade the use of computers and other equipment for personal purposes.
But the consideration by the European Court of this complaint was limited only to checking how balanced and comprehensive analysis of the dispute was conducted by the Romanian courts. This dispute concerned the actions of a private company for which the state cannot be held responsible under the Convention. Therefore, in this case, the responsibility of the state is limited only to the fulfillment of its obligations to ensure the protection of human rights through the adoption of relevant laws and ensuring justice in the event of a dispute (the so-called positive obligations). Therefore, the ECtHR analyzed how the Romanian authorities fulfilled these requirements. In the judgment of the case, the Court decided that the national courts duly considered the dispute: they listened to all the arguments of the parties, analyzed them in detail and came to reasoned conclusions on all the issues raised by the parties.
True, the position of the European Court and its arguments may change. But in any case, the control of employee correspondence can only be carried out on the basis of a law that should provide for the goals of such control, and these goals should be consistent with the interests of protecting personal correspondence from unwarranted and arbitrary interference.
[1] Amann v. Switzerland [GC] (no. 27798/95), Halford v. the United Kingdom (25 June 1997), Copland v. the United Kingdom (no. 62617/00).
Source: https://habr.com/ru/post/303398/
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