Secrecy of the communications in the work sphere

The right to the secrecy and privacy of the communications is recognised in the article 18.3 of the Spanish Constitution. This right has been also developed in the jurisprudence of the European Court of Human Rights which has an interesting judgment from September 5th 2017. In the said judgment, the right to the secrecy of the communications in the work sphere is discussed, specially in the case where the employer monitors the communications of the employee without their consent and knowledge.

This is the case of Barbulescu v. Romania. The case comes from a claim issued by Mr. Barbulescu against Romania in the year 2008. The writ was based on the article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that a claim can be issued when it is considered that it has been an infringement of the rights contained in the Convention. In the claim it was said that the Courts of Romania did not protect the right to respect for private and family life contained in the article 8 of the Convention.

In relation to the relevant facts, it must be said that the claimant worked in a private company as a sales engineer. Under the instructions of the company, he created an account in Yahoo Messenger (an instant messaging service by internet) in order to deal with the clients. The employee also had other personal account in the social network.

In the internal rules of the company it was stablished that the employee could not use computers, photocopier, telephones, and fax machine for personal use. These rules did not include the power of the employer to supervise the communications of the employees.

The company decided in the year 2007 that employees should sign a document in which they recognized that in the company they could not use working time for personal purposes and that the company was going to verify and manage the labour activities of the employees to take appropriate measures against the ones that violate the terms.

The communications of the claimant were registered between the 5th and the 13th of July 2007. He was called by a boss of the company on the 13th of July, in the meeting the petitioner was informed of the fact that his conversations had been supervised and it could be inferred that he had made use of the internet for his own affairs. The information did not provide details about the time that he used the internet or about the content, but it was said that he spent more time on internet than the average. The claimant alleged in writing that he just used the internet for working.

In the same day he was called by a boss of the company again. In the meeting they informed him that he made a private use of the internet, they attached 45 pages of the transcript of the communications, it was shown that the claimant sent messages to his brother and to his girlfriend. In the attachment there was included private data from the Yahoo Messenger personal account of the claimant. After that, on the 13th of July, the employee said to the company that they were responsible for violating his private and personal life. On the first of August the labour relation of the claimant with the company was extinguished.

The Court establishes that it exists a conflict of interests between the right of the company to monitor to the employees and the right of these ones to protect their private life.  This conflict had been discussed in the directive 95/46/CE, that provides the adequate levels of monitoring in the use of internet and e-mail in the working sphere. The main principles regarding this directive are the followings: there must exist needs in the monitoring; with specific, clear and legitimate goals; data treatment will be in the cases where it exists a legal purpose, data treatment will also be proportional and the employer must ensure that the data obtained will not be accessible by third parties.

In consideration to the jurisprudence of the ECHR, in this case the communications obtained by the company are included in the concept of familiar privacy protected by the Convention. The claimant was not informed by the employer that the communications could be obtained and the scope of the supervisions.

The Court understands that this types of situation are evolving, but proportionality and court guarantees must be ensured against discretional acts by the employers. The national judicial system of Romania did not provide appropriate justice to Mr.  Barbulescu and it existed a violation of the article 8 of the Convention.

Finally, considering the said reasons, the Court partially granted the claim, reducing the quantity asked to 1.365 Euros that the defendant must pay to the claimant, plus costs and expenses.


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