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joi, 14 ianuarie 2016

ECHR on monitoring the private electronic communications by the employer


The European Court of Human Rights, Fourh Section, held in its Judgment of 12 January 2016, in the case of Bărbulescu v. România (application no. 61496/08), that that there has been no violation of Article 8 of the Convention.
The applicant was employed for several years by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. In July 2007, the employer informed the applicant that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed that he had used the Internet for personal purposes (messages exchanged with his fiancée and his brother), contrary to internal regulations.
On 1 August 2007 the employer terminated the applicant’s employment contract for breach of the company’s internal regulations which stated that it is forbidden to use computers, photocopiers, telephones, telex and fax machines for personal purposes. The Romanian courts rejected the applicant’s complaint.
The European Court reiterated that although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 57, ECHR 2012, and Benediksdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009). The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition. In both contexts regard must be had to the fair balance that has to be struck between the competing interests – which may include competing private and public interests or Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, §§ 75 and 77, ECHR 2007I) – and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover, cited above; and Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014).
In the instant case, the Court found that the applicant’s complaint must be examined from the standpoint of the State’s positive obligations since he was employed by a private company, which could not by its actions engage State responsibility under the Convention. The Court’s findings in the case of Oleksandr Volkov v. Ukraine (no. 21722/11, ECHR 2013), which concerned the dismissal of a judge, are therefore not applicable in the present case, as suggested by the applicant.
Therefore, the Court had to examine whether the State, in the context of its positive obligations under Article 8, struck a fair balance between the applicant’s right to respect for his private life and correspondence and his employer’s interests.
In this regard, the Court refered to its findings as to the scope of the complaint which is limited to the monitoring of the applicant’s communications within the framework of disciplinary proceedings.  The Court noted that both the County Court and the Court of Appeal attached particular importance to the fact that the employer had accessed the applicant’s Yahoo Messenger account in the belief that it had contained professional messages, since the latter had initially claimed that he had used it in order to advise clients. It follows that the employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate.
As to the use of the transcript of the applicant’s communications on Yahoo Messenger as evidence before the domestic courts, the Court noted the domestic courts relied on the transcript only to the extent that it proved the applicant’s disciplinary breach, namely that he had used the company’s computer for personal purposes during working hours. Therefore, the Court took the view that the content of the communications was not a decisive element in the domestic courts’ findings.
While it is true that it had not been claimed that the applicant had caused actual damage to his employer (compare and contrast Pay v. United Kingdom, (dec.), no. 32792/05, 16 September 2008 where the applicant was involved outside work in activities that were not compatible with his professional duties, and Köpke v. Germany, (dec.), no. 420/07, 5 October 2010, where the applicant had caused material losses to her employer), the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.
In addition, the Court observed that it appears that the communications on his Yahoo Messenger account were examined, but not the other data and documents that were stored on his computer. It therefore finds that the employer’s monitoring was limited in scope and proportionate (compare and contrast Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 59 and 63, ECHR 2007IV, and Yuditskaya and Others v. Russia, no. 5678/06, § 30, 12 February 2015).
Furthermore, the Court finds that the applicant has not convincingly explained why he had used the Yahoo messenger account for personal purposes.
Having regard to the foregoing, the Court concluded in the present case that there is nothing to indicate that the domestic authorities failed to strike a fair balance, within their margin of appreciation, between the applicant’s right to respect for his private life under Article 8 and his employer’s interests.