5 September 2017 The
Grand Chamber of the European Court of Human Rights (ECHR) ruled in case Nr.
61496/08, which has strengthened the protection of employee‘s privacy.
In the case of Barbulescu v.
Romania, the court found that the employer illegally and without warning and
informing the employee verified his correspondence through the Yahoo Messenger
account and thus violated his right to privacy and the confidentiality of
communications, even though the employee was informed in writing of the
company's internal policies prohibiting use equipment provided by the employer
for non-work activities.
It is undisputed that
by monitoring employee‘s emails the employer is defending his legitimate
interest in ensuring the smooth operation of the company. This measure is not
prohibited, but must be proportionate and guarantee the protection of the
employee from the employer's arbitrariness, since the employee retains his
right to privacy during his work and the rules laid down by the employer cannot,
in general, deny the employee's social life.
The
Grand Chamber highlighted the principles on which the legitimacy of monitoring
is assessed:
- the principle of specific purpose - monitoring can
only be carried out with a specific, clearly expressed and legitimate aim;
- the principle of legitimacy - the employer's purpose,
which justifies the need for monitoring, must be legitimate;
- the principle of proportionality - the employer must
assess the consequences for the employee of the monitoring, the degree of
privacy restriction is assessed according to:
- whether the flow or content of communication is being
monitored;
- whether all communication or part of it is monitored;
- how long is the monitoring going;
- where the monitoring is being carried out;
- who can get acquainted with the results of monitoring;
- the principle of necessity - before starting to
monitor, the employer must make sure that less restrictive means of privacy
will not achieve the same goal;
- the principle of protection - all necessary security
measures must be taken to ensure that the information is not attained by third
parties;
- the principle of information: the worker must be
informed about the possibility and nature of the monitoring before starting to
monitor.
What
should employers do?This decision of the ECHR
undoubtedly reinforced the need to reconcile the interests of the company with
the employee's right to privacy. According to Article 27 Paragraph 3 of Labour
Code of the Republic of Lithuania the employer has to prepare and introduce
employees with the provisions of the use of information and communication
technologies and the monitoring and control of employees in the work place. It is important to follow the above
principles when preparing such provisions -
to clearly notify the employee of the
ongoing monitoring before starting to
implement it, to clearly discuss the purpose of the monitoring and to ensure
that the monitoring is legal, necessary and proportionate and the protection of
the employee's data is ensured.
More information about
the case can be found in the link above.
http://hudoc.echr.coe.int/eng?i=001-177082Should you have further
questions, please do not hesitate to contact us:
04.04.18
