Ontslag wegens e-mailen op werkplek, Recht op privacy op het werk
De werknemer, van Roemeense nationaliteit, is gedurende drie jaar als sales engineer bij de werkgever in dienst geweest. In juli 2007 heeft de werkgever de werknemer ontslagen wegens gebruik van het internet op het werk voor persoonlijke doeleinden, waaronder een e-mailwisseling met zijn broer en één met zijn verloofde over, onder meer, zijn gezondheid en zijn seksleven. De werknemer heeft gesteld dat dit ontslag nietig is omdat de werkgever in strijd heeft gehandeld met zijn recht op correspondentie. De Roemeense rechter heeft het beroep verworpen. De werknemer heeft vervolgens een klacht ingediend bij het EHRM over schending van zijn recht op privacy (art. 8). Een kamer van het EHRM (zeven rechters) heeft geoordeeld dat art. 8 EVRM niet is geschonden. De werknemer heeft verwijzing naar de Grote Kamer (17 rechters) gevraagd.
De Grote Kamer van het EHRM komt nu tot de conclusie dat art. 8 wel is geschonden. De Grote Kamer overweegt dat een werkgever niet het recht heeft om het privéleven op de werkplek tot nul terug te brengen. Ook op het werk bestaat een recht op privacy, ook al mag dit worden ingeperkt. Anders dan de eerdere Kamer, oordeelt de Grote Kamer dat de nationale rechters geen juist evenwicht hebben gevonden tussen het belang van de werkgever en dat van de werknemer. De nationale rechter heeft niet onderzocht of de werknemer vooraf was geïnformeerd over de mogelijkheid van controle op zijn e-mail en heeft geen aandacht besteed aan de omvang van de inbreuk op de privacy van de werknemer, hoewel de werkgever alle gesprekken van de werknemer had uitgeprint. Verder is de nationale rechter niet nagegaan of er voldoende redenen waren voor controle op de e-mail van de werknemer en evenmin of het onderzoek niet op een minder ingrijpende wijze had kunnen worden uitgevoerd. Ten slotte heeft geen van de betrokken rechters in zijn overwegingen betrokken dat de werkgever direct de meest zware sanctie (ontslag) heeft opgelegd. De conclusie is dat de nationale autoriteiten het recht op privacy van de werknemer onvoldoende hebben beschermd en dat in strijd is gehandeld met art. 8. EVRM De werknemer krijgt geen vergoeding voor immateriële schade, omdat het oordeel van het EHRM op zich wordt beschouwd als een voldoende genoegdoening.
NB. Zie «JAR» 2016/43 voor het eerdere oordeel van het EHRM. Uitgangspunt in het Nederlandse recht is ook dat er een zeker recht op privacy bestaat op de werkplek, maar dat hieraan wel begrenzingen mogen worden gesteld. Zie onder meer «JAR» 2015/40 en «JAR» 2014/273. Bij misbruik is ontslag mogelijk, zelfs op staande voet, zoals in «JAR» 2017/241.
I. The circumstances of the case
10. The applicant was born in 1979 and lives in Bucharest.
11. From 1 August 2004 to 6 August 2007 he was employed in the Bucharest office of S., a Romanian private company (“the employer”), as a sales engineer. At his employer’s request, for the purpose of responding to customers’ enquiries, he created an instant messaging account using Yahoo Messenger, an online chat service offering real-time text transmission over the internet. He already had another personal Yahoo Messenger account.
12. The employer’s internal regulations prohibited the use of company resources by employees in the following terms:
“Any disturbance of order and discipline on company premises shall be strictly forbidden, in particular:
– (...) personal use of computers, photocopiers, telephones or telex or fax machines.”
13. The regulations did not contain any reference to the possibility for the employer to monitor employees’ communications.
14. It appears from documents submitted by the Government that the applicant had been informed of the employer’s internal regulations and had signed a copy of them on 20 December 2006 after acquainting himself with their contents.
15. On 3 July 2007 the Bucharest office received and circulated among all its employees an information notice that had been drawn up and sent by the Cluj head office on 26 June 2007. The employer asked employees to acquaint themselves with the notice and to sign a copy of it. The relevant parts of the notice read as follows:
“1. (...) Time spent in the company must be quality time for everyone! Come to work to deal with company and professional matters, and not your own personal problems! Don’t spend your time using the internet, the phone or the fax machine for matters unconnected to work or your duties. This is what [elementary education], common sense and the law dictate! The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault!
Your misconduct will be carefully monitored and punished!
2. Because of repeated [disciplinary] offences vis-à-vis her superior, [as well as] her private use of the internet, the telephone and the photocopier, her negligence and her failure to perform her duties, Ms B.A. was dismissed on disciplinary grounds! Take a lesson from her bad example! Don’t make the same mistakes!
3. Have a careful read of the collective labour agreement, the company’s internal regulations, your job description and the employment contract you have signed! These are the basis of our collaboration! Between employer and employee! (...)”
16. It also appears from the documents submitted by the Government, including the employer’s attendance register, that the applicant acquainted himself with the notice and signed it between 3 and 13 July 2007.
17. In addition, it transpires that from 5 to 13 July 2007 the employer recorded the applicant’s Yahoo Messenger communications in real time.
18. On 13 July 2007 at 4.30 p.m. the applicant was summoned by his employer to give an explanation. In the relevant notice he was informed that his Yahoo Messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes, in breach of the internal regulations. Charts were attached indicating that his internet activity was greater than that of his colleagues. At that stage, he was not informed whether the monitoring of his communications had also concerned their content. The notice was worded as follows:
“Please explain why you are using company resources (internet connection, Messenger) for personal purposes during working hours, as shown by the attached charts.”
19. On the same day, the applicant informed the employer in writing that he had used Yahoo Messenger for work-related purposes only.
20. At 5.20 p.m. the employer again summoned him to give an explanation in a notice worded as follows:
“Please explain why the entire correspondence you exchanged between 5 to 12 July 2007 using the S. Bucharest [internet] site ID had a private purpose, as shown by the attached forty-five pages.”
21. The forty-five pages mentioned in the notice consisted of a transcript of the messages which the applicant had exchanged with his brother and his fiancée during the period when he had been monitored; the messages related to personal matters and some were of an intimate nature. The transcript also included five messages that the applicant had exchanged with his fiancée using his personal Yahoo Messenger account; these messages did not contain any intimate information.
22. Also on 13 July, the applicant informed the employer in writing that in his view it had committed a criminal offence, namely breaching the secrecy of correspondence.
23. On 1 August 2007 the employer terminated the applicant’s contract of employment.
24. The applicant challenged his dismissal in an application to the Bucharest County Court (“the County Court”). He asked the court, firstly, to set aside the dismissal; secondly, to order his employer to pay him the amounts he was owed in respect of wages and any other entitlements and to reinstate him in his post; and thirdly, to order the employer to pay him 100,000 Romanian lei (approximately 30,000 euros) in damages for the harm resulting from the manner of his dismissal, and to reimburse his costs and expenses.
25. As to the merits, relying on Copland v. the United Kingdom (no. 62617/00, par. 43-44, ECHR 2007-I), he argued that an employee’s telephone and email communications from the workplace were covered by the notions of “private life” and “correspondence” and were therefore protected by Article 8 of the Convention. He also submitted that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law.
26. With regard specifically to the harm he claimed to have suffered, the applicant noted the manner of his dismissal and alleged that he had been subjected to harassment by his employer through the monitoring of his communications and the disclosure of their contents “to colleagues who were involved in one way or another in the dismissal procedure”.
27. The applicant submitted evidence including a full copy of the transcript of his Yahoo Messenger communications and a copy of the information notice (see paragraph 15 above).
28. In a judgment of 7 December 2007 the County Court rejected the applicant’s application and confirmed that his dismissal had been lawful. The relevant parts of the judgment read as follows:
“The procedure for conducting a disciplinary investigation is expressly regulated by the provisions of Article 267 of the Labour Code.
In the instant case it has been shown, through the written documents included in the file, that the employer conducted the disciplinary investigation in respect of the applicant by twice summoning him in writing to explain himself [and] specifying the subject, date, time and place of the interview, and that the applicant had the opportunity to submit arguments in his defence regarding his alleged acts, as is clear from the two explanatory notices included in the file (see copies on sheets 89 and 91).
The court takes the view that the monitoring of the internet conversations in which the employee took part using the Yahoo Messenger software on the company’s computer during working hours – regardless of whether or not the employer’s actions were illegal in terms of criminal law – cannot undermine the validity of the disciplinary proceedings in the instant case.
The fact that the provisions containing the requirement to interview the suspect (învinuitul) in a case of alleged misconduct and to examine the arguments submitted in that person’s defence prior to the decision on a sanction are couched in imperative terms highlights the legislature’s intention to make respect for the rights of the defence a prerequisite for the validity of the decision on the sanction.
In the present case, since the employee maintained during the disciplinary investigation that he had not used Yahoo Messenger for personal purposes but in order to advise customers on the products being sold by his employer, the court takes the view that an inspection of the content of the [applicant’s] conversations was the only way in which the employer could ascertain the validity of his arguments.
The employer’s right to monitor (monitoriza) employees in the workplace, [particularly] as regards their use of company computers, forms part of the broader right, governed by the provisions of Article 40 (d) of the Labour Code, to supervise how employees perform their professional tasks.
Given that it has been shown that the employees’ attention had been drawn to the fact that, shortly before the applicant’s disciplinary sanction, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes, and that the employees had been warned that their activities were being monitored (see notice no. 2316 of 3 July 2007, which the applicant had signed [after] acquainting himself with it – see copy on sheet 64), the employer cannot be accused of showing a lack of transparency and of failing to give its employees a clear warning that it was monitoring their computer use.
Internet access in the workplace is above all a tool made available to employees by the employer for professional use, and the employer indisputably has the power, by virtue of its right to supervise its employees’ activities, to monitor personal internet use.
Such checks by the employer are made necessary by, for example, the risk that through their internet use, employees might damage the company’s IT systems, carry out illegal activities in cyberspace for which the company could incur liability, or disclose the company’s trade secrets.
The court considers that the acts committed by the applicant constitute a disciplinary offence within the meaning of Article 263 par. 2 of the Labour Code since they amount to a culpable breach of the provisions of Article 50 of S.’s internal regulations (...), which prohibit the use of computers for personal purposes.
The aforementioned acts are deemed by the internal regulations to constitute serious misconduct, the penalty for which, in accordance with Article 73 of the same internal regulations, [is] termination of the contract of employment on disciplinary grounds.
Having regard to the factual and legal arguments set out above, the court considers that the decision complained of is well-founded and lawful, and dismisses the application as unfounded.”
29. The applicant appealed to the Bucharest Court of Appeal (“the Court of Appeal”). He repeated the arguments he had submitted before the first-instance court and contended in addition that that court had not struck a fair balance between the interests at stake, unjustly prioritising the employer’s interest in enjoying discretion to control its employees’ time and resources. He further argued that neither the internal regulations nor the information notice had contained any indication that the employer could monitor employees’ communications.
30. The Court of Appeal dismissed the applicant’s appeal in a judgment of 17 June 2008, the relevant parts of which read:
“The first-instance court has rightly concluded that the internet is a tool made available to employees by the employer for professional use, and that the employer is entitled to set rules for the use of this tool, by laying down prohibitions and provisions which employees must observe when using the internet in the workplace; it is clear that personal use may be refused, and the employees in the present case were duly informed of this in a notice issued on 26 June 2007 in accordance with the provisions of the internal regulations, in which they were instructed to observe working hours, to be present at the workplace [during those hours and] to make effective use of working time.
In conclusion, an employer who has made an investment is entitled, in exercising the rights enshrined in Article 40 par. 1 of the Labour Code, to monitor internet use in the workplace, and an employee who breaches the employer’s rules on personal internet use is committing a disciplinary offence that may give rise to a sanction, including the most serious one.
There is undoubtedly a conflict between the employer’s right to engage in monitoring and the employees’ right to protection of their privacy. This conflict has been settled at European Union level through the adoption of Directive no. 95/46/EC, which has laid down a number of principles governing the monitoring of internet and email use in the workplace, including the following in particular.
– Principle of necessity: monitoring must be necessary to achieve a certain aim.
– Principle of purpose specification: data must be collected for specified, explicit and legitimate purposes.
– Principle of transparency: the employer must provide employees with full information about monitoring operations.
– Principle of legitimacy: data-processing operations may only take place for a legitimate purpose.
– Principle of proportionality: personal data being monitored must be relevant and adequate in relation to the specified purpose.
– Principle of security: the employer is required to take all possible security measures to ensure that the data collected are not accessible to third parties.
In view of the fact that the employer has the right and the duty to ensure the smooth running of the company and, to that end, [is entitled] to supervise how its employees perform their professional tasks, and the fact [that it] enjoys disciplinary powers which it may legitimately use and which [authorised it in the present case] to monitor and transcribe the communications on Yahoo Messenger which the employee denied having exchanged for personal purposes, after he and his colleagues had been warned that company resources should not be used for such purposes, it cannot be maintained that this legitimate aim could have been achieved by any other means than by breaching the secrecy of his correspondence, or that a fair balance was not struck between the need to protect [the employee’s] privacy and the employer’s right to supervise the operation of its business.
Accordingly, having regard to the considerations set out above, the court finds that the decision of the first-instance court is lawful and well-founded and that the appeal is unfounded; it must therefore be dismissed, in accordance with the provisions of Article 312 par. 1 of the C[ode of] Civ[il] Pr[ocedure].”
31. In the meantime, on 18 September 2007 the applicant had lodged a criminal complaint against the statutory representatives of S., alleging a breach of the secrecy of correspondence. On 9 May 2012 the Directorate for Investigating Organised Crime and Terrorism (DIICOT) of the prosecutor’s office attached to the Supreme Court of Cassation and Justice ruled that there was no case to answer, on the grounds that the company was the owner of the computer system and the internet connection and could therefore monitor its employees’ internet activity and use the information stored on the server, and in view of the prohibition on personal use of the IT systems, as a result of which the monitoring had been foreseeable. The applicant did not avail himself of the opportunity provided for by the applicable procedural rules to challenge the prosecuting authorities’ decision in the domestic courts.
II. Relevant domestic law
III. International law and practice
IV. European union law
V. Comparative law
I. Alleged violation of Article 8 of the Convention
55. The applicant submitted that his dismissal by his employer had been based on a breach of his right to respect for his private life and correspondence and that, by not revoking that measure, the domestic courts had failed to comply with their obligation to protect the right in question. He relied on Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The Chamber’s findings
56. In its judgment of 12 January 2016 the Chamber held, firstly, that Article 8 of the Convention was applicable in the present case. Referring to the concept of reasonable expectation of privacy, it found that the present case differed from Copland (cited above, par. 41) and Halford v. the United Kingdom (25 June 1997, par. 45, Reports of Judgments and Decisions 1997-III) in that the applicant’s employer’s internal regulations in the present case strictly prohibited employees from using company computers and resources for personal purposes. The Chamber had regard to the nature of the applicant’s communications and the fact that a transcript of them had been used as evidence in the domestic court proceedings, and concluded that the applicant’s right to respect for his “private life” and “correspondence” was at stake.
57. Next, the Chamber examined the case from the standpoint of the State’s positive obligations, since the decision to dismiss the applicant had been taken by a private-law entity. It therefore determined whether the national authorities had struck a fair balance between the applicant’s right to respect for his private life and correspondence and his employer’s interests.
58. The Chamber noted that the applicant had been able to bring his case and raise his arguments before the labour courts. The courts had found that he had committed a disciplinary offence by using the internet for personal purposes during working hours, and to that end they had had regard to the conduct of the disciplinary proceedings, in particular the fact that the employer had accessed the contents of the applicant’s communications only after the applicant had declared that he had used Yahoo Messenger for work-related purposes.
59. The Chamber further noted that the domestic courts had not based their decisions on the contents of the applicant’s communications and that the employer’s monitoring activities had been limited to his use of Yahoo Messenger.
60. Accordingly, it held that there had been no violation of Article 8 of the Convention.
B. Scope of the case before the Grand Chamber
61. The Court notes that in the proceedings before the Chamber the applicant alleged that his employer’s decision to terminate his contract had been based on a breach of his right to respect for his private life and correspondence as enshrined in Article 8 of the Convention and that, by not revoking that measure, the domestic courts had failed to comply with their obligation to protect the right in question. The Chamber declared this complaint admissible on 12 January 2016.
62. The Court reiterates that the case referred to the Grand Chamber is the application as it has been declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, par. 140-41, ECHR 2001-VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, par. 109, ECHR 2007-IV; and Blokhin v. Russia [GC], no. 47152/06, par. 91, ECHR 2016).
63. In his observations before the Grand Chamber, the applicant complained for the first time about the rejection in 2012 of the criminal complaint filed by him in connection with an alleged breach of the secrecy of correspondence (see paragraph 90 below).
64. This new complaint was not mentioned in the decision of 12 January 2016 as to admissibility, which defines the boundaries of the examination of the application. It therefore falls outside the scope of the case as referred to the Grand Chamber, which accordingly does not have jurisdiction to deal with it and will limit its examination to the complaint that was declared admissible by the Chamber.
C. Applicability of Article 8 of the Convention
1. The parties’ submissions
2. The Court’s assessment
69. The Court notes that the question arising in the present case is whether the matters complained of by the applicant fall within the scope of Article 8 of the Convention.
70. At this stage of its examination it considers it useful to emphasise that “private life” is a broad term not susceptible to exhaustive definition (see Sidabras and Dziautas v. Lithuania, nos. 55480/00 and 59330/00, par. 43, ECHR 2004-VIII). Article 8 of the Convention protects the right to personal development (see K.A. and A.D. v. Belgium, nos. 42758/98 and 45558/99, par. 83, 17 February 2005), whether in terms of personality (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, par. 90, ECHR 2002-VI) or of personal autonomy, which is an important principle underlying the interpretation of the Article 8 guarantees (see Pretty v. the United Kingdom, no. 2346/02, par. 61, ECHR 2002-III). The Court acknowledges that everyone has the right to live privately, away from unwanted attention (see Smirnova v. Russia,nos. 46133/99 and 48183/99, par. 95, ECHR 2003-IX (extracts)). It also considers that it would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his or her own personal life as he or she chooses, thus excluding entirely the outside world not encompassed within that circle (see Niemietz v. Germany, 16 December 1992, par. 29, Series A no. 251-B). Article 8 thus guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them (see Bigaeva v. Greece, no. 26713/05, par. 22, 28 May 2009, and Özpinar v. Turkey, no. 20999/04, par. 45 in fine, 19 October 2010).
71. The Court considers that the notion of “private life” may include professional activities (see Fernández Martínez v. Spain [GC], no. 56030/07, par. 110, ECHR 2014 (extracts), and Oleksandr Volkov v. Ukraine, no. 21722/11, par. 165-66, ECHR 2013), or activities taking place in a public context (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, par. 95, ECHR 2012). Restrictions on an individual’s professional life may fall within Article 8 where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others. It should be noted in this connection that it is in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world (see Niemietz, cited above, par. 29).
72. Furthermore, as regards the notion of “correspondence”, it should be noted that in the wording of Article 8 this word is not qualified by any adjective, unlike the term “life”. And indeed, the Court has already held that, in the context of correspondence by means of telephone calls, no such qualification is to be made. In a number of cases relating to correspondence with a lawyer, it has not even envisaged the possibility that Article 8 might be inapplicable on the ground that the correspondence was of a professional nature (see Niemietz, cited above, par. 32, with further references). Furthermore, it has held that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see Roman Zakharov v. Russia [GC], no. 47143/06, par. 173, ECHR 2015). In principle, this is also true where telephone calls are made from or received on business premises (see Halford, cited above, par. 44, and Amann v. Switzerland [GC], no. 27798/95, par. 44, ECHR 2000-II). The same applies to emails sent from the workplace, which enjoy similar protection under Article 8, as does information derived from the monitoring of a person’s internet use (see Copland, cited above, par. 41 in fine).
73. It is clear from the Court’s case-law that communications from business premises as well as from the home may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 of the Convention (see Halford, cited above, par. 44; and Copland, cited above, par. 41). In order to ascertain whether the notions of “private life” and “correspondence” are applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected (ibid.; and as regards “private life”, see also Köpke v. Germany (dec.), no. 420/07, 5 October 2010). In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Köpke, cited above).
74. Applying these principles in the present case, the Court first observes that the kind of internet instant messaging service at issue is just one of the forms of communication enabling individuals to lead a private social life. At the same time, the sending and receiving of communications is covered by the notion of “correspondence”, even if they are sent from an employer’s computer. The Court notes, however, that the applicant’s employer instructed him and the other employees to refrain from any personal activities in the workplace. This requirement on the employer’s part was reflected in measures including a ban on using company resources for personal purposes (see paragraph 12 above).
75. The Court further notes that with a view to ensuring that this requirement was met, the employer set up a system for monitoring its employees’ internet use (see paragraphs 17 and 18 above). The documents in the case file, in particular those relating to the disciplinary proceedings against the applicant, indicate that during the monitoring process, both the flow and the content of the applicants’ communications were recorded and stored (see paragraphs 18 and 20 above).
76. The Court observes in addition that despite this requirement on the employer’s part, the applicant exchanged messages of a personal nature with his fiancée and his brother (see paragraph 21 above). Some of these messages were of an intimate nature (ibid.).
77. The Court considers that it is clear from the case file that the applicant had indeed been informed of the ban on personal internet use laid down in his employer’s internal regulations (see paragraph 14 above). However, it is not so clear that he had been informed prior to the monitoring of his communications that such a monitoring operation was to take place. Thus, the Government submitted that the applicant had acquainted himself with the employer’s information notice on an unspecified date between 3 and 13 July 2007 (see paragraph 16 above). Nevertheless, the domestic courts omitted to ascertain whether the applicant had been informed of the monitoring operation before the date on which it began, given that the employer recorded communications in real time from 5 to 13 July 2007 (see paragraph 17 above).
78. In any event, it does not appear that the applicant was informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual contents of his communications.
79. The Court also takes note of the applicant’s argument that he himself had created the Yahoo Messenger account in question and was the only person who knew the password (see paragraph 68 above). In addition, it observes that the material in the case file indicates that the employer also accessed the applicant’s personal Yahoo Messenger account (see paragraph 21 above). Be that as it may, the applicant had created the Yahoo Messenger account in issue on his employer’s instructions to answer customers’ enquiries (see paragraph 11 above), and the employer had access to it.
80. It is open to question whether – and if so, to what extent – the employer’s restrictive regulations left the applicant with a reasonable expectation of privacy. Be that as it may, an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.
81. In the light of all the above considerations, the Court concludes that the applicant’s communications in the workplace were covered by the concepts of “private life” and “correspondence”. Accordingly, in the circumstances of the present case, Article 8 of the Convention is applicable.
D. Compliance with Article 8 of the Convention
1. The parties’ submissions and third-party comments
2. The Court’s assessment
(a) Whether the case concerns a negative or a positive obligation
108. The Court must determine whether the present case should be examined in terms of the State’s negative or positive obligations. It reiterates that by Article 1 of the Convention, the Contracting Parties “shall secure to everyone within their jurisdiction the rights and freedoms defined in (...) [the] Convention”. While the essential object of Article 8 of the Convention is to protect individuals against arbitrary interference by public authorities, it may also impose on the State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see,among other authorities, X and Y v. the Netherlands, 26 March 1985, par. 23, Series A no. 91; Von Hannover (no. 2), cited above, par. 98;and Hämäläinen v. Finland [GC], no. 37359/09, par. 62, ECHR 2014).
109. In the present case the Court observes that the measure complained of by the applicant, namely the monitoring of Yahoo Messenger communications, which resulted in disciplinary proceedings against him followed by his dismissal for infringing his employer’s internal regulations prohibiting the personal use of company resources, was not taken by a State authority but by a private commercial company. The monitoring of the applicant’s communications and the inspection of their content by his employer in order to justify his dismissal cannot therefore be regarded as “interference” with his right by a State authority.
110. Nevertheless, the Court notes that the measure taken by the employer was accepted by the national courts. It is true that the monitoring of the applicant’s communications was not the result of direct intervention by the national authorities; however, their responsibility would be engaged if the facts complained of stemmed from a failure on their part to secure to the applicant the enjoyment of a right enshrined in Article 8 of the Convention (see, mutatis mutandis, Obst v. Germany,no. 425/03, par. 40 and 43, 23 September 2010, and Schüth v. Germany, no. 1620/03, par. 54 and 57, ECHR 2010).
111. In the light of the particular circumstances of the case as described in paragraph 109 above, the Court considers, having regard to its conclusion concerning the applicability of Article 8 of the Convention (see paragraph 81 above) and to the fact that the applicant’s enjoyment of his right to respect for his private life and correspondence was impaired by the actions of a private employer, that the complaint should be examined from the standpoint of the State’s positive obligations.
112. While the boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, par. 62, ECHR 2011).
(b) General principles applicable to the assessment of the State’s positive obligation to ensure respect for private life and correspondence in an employment context
113. The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. There are different ways of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see Söderman v. Sweden [GC], no. 5786/08, par. 79, ECHR 2013, with further references).
114. The Court’s task in the present case is therefore to clarify the nature and scope of the positive obligations that the respondent State was required to comply with in protecting the applicant’s right to respect for his private life and correspondence in the context of his employment.
115. The Court observes that it has held that in certain circumstances, the State’s positive obligations under Article 8 of the Convention are not adequately fulfilled unless it secures respect for private life in the relations between individuals by setting up a legislative framework taking into consideration the various interests to be protected in a particular context (see X and Y v. the Netherlands, cited above, par. 23, 24 and 27, and M.C. v. Bulgaria,no. 39272/98, par. 150, ECHR 2003-XII, both concerning sexual assaults of minors; see also K.U. v. Finland, no. 2872/02, par. 43 and 49, ECHR 2008, concerning an advertisement of a sexual nature placed on an internet dating site in the name of a minor; Söderman, cited above, par. 85, concerning the effectiveness of remedies in respect of an alleged violation of personal integrity committed by a close relative; and Codarcea v. Romania, no. 31675/04, par. 102-04, 2 June 2009, concerning medical negligence).
116. The Court accepts that protective measures are not only to be found in labour law, but also in civil and criminal law. As far as labour law is concerned, it must ascertain whether in the present case the respondent State was required to set up a legislative framework to protect the applicant’s right to respect for his private life and correspondence in the context of his professional relationship with a private employer.
117. In this connection it considers at the outset that labour law has specific features that must be taken into account. The employer-employee relationship is contractual, with particular rights and obligations on either side, and is characterised by legal subordination. It is governed by its own legal rules, which differ considerably from those generally applicable to relations between individuals(see Saumier v. France, no. 74734/14, par. 60, 12 January 2017).
118. From a regulatory perspective, labour law leaves room for negotiation between the parties to the contract of employment. Thus, it is generally for the parties themselves to regulate a significant part of the content of their relations (see, mutatis mutandis, Wretlund v. Sweden (dec.), no. 46210/99, 9 March 2004, concerning the compatibility with Article 8 of the Convention of the obligation for the applicant, an employee at a nuclear plant, to undergo drug tests; with regard to trade-union action from the standpoint of Article 11, see Gustafsson v. Sweden, 25 April 1996, par. 45, Reports 1996-II, and, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, par. 140-46, ECHR 2008, for the specific case of civil servants). It also appears from the comparative-law material at the Court’s disposal that there is no European consensus on this issue. Few member States have explicitly regulated the question of the exercise by employees of their right to respect for their private life and correspondence in the workplace (see paragraph 52 above).
119. In the light of the above considerations, the Court takes the view that the Contracting States must be granted a wide margin of appreciation in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace.
120. Nevertheless, the discretion enjoyed by States in this field cannot be unlimited. The domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse (see, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, par. 50, Series A no. 28, and Roman Zakharov, cited above, par. 232-34).
121. The Court is aware of the rapid developments in this area. Nevertheless, it considers that proportionality and procedural guarantees against arbitrariness are essential. In this context, the domestic authorities should treat the following factors as relevant:
(i) whether the employee has beennotified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures. While in practice employees may be notified in various ways depending on the particular factual circumstances of each case, the Court considers that for the measures to be deemed compatible with the requirements of Article 8 of the Convention, the notification should normally be clear about the nature of the monitoring and be given in advance;
(ii) theextent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. In this regard, a distinction should be made between monitoring of the flow of communications and of their content. Whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results (see Köpke, cited above). The same applies to the spatial limits to the monitoring;
(iii) whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content (see paragraphs 38, 43 and 45 above for an overview of international and European law in this area). Since monitoring of the content of communications is by nature a distinctly more invasive method, it requires weightier justification;
(iv) whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications. In this connection, there should be an assessment in the light of the particular circumstances of each case of whether the aim pursued by the employer could have been achieved without directly accessing the full contents of the employee’s communications;
(v) the consequences of the monitoring for the employee subjected to it (see, mutatis mutandis, the similar criterion applied in the assessment of the proportionality of an interference with the exercise of freedom of expression as protected by Article 10 of the Convention in Axel Springer AG v. Germany [GC], no. 39954/08, par. 95, 7 February 2012, with further references); and the use made by the employer of the results of the monitoring operation, in particular whether the results were used to achieve the declared aim of the measure (see Köpke, cited above);
(vi) whether the employee had been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature. Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.
In this context, it is worth reiterating that in order to be fruitful, labour relations must be based on mutual trust (see Palomo Sánchez and Others, cited above, par. 76).
122. Lastly, the domestic authorities should ensure that an employee whose communications have been monitored has access to a remedy before a judicial body with jurisdiction to determine, at least in substance, how the criteria outlined above were observed and whether the impugned measures were lawful (see Obst, cited above, par. 45, and Köpke, cited above).
123. In the present case the Court will assess how the domestic courts to which the applicant applied dealt with his complaint of an infringement by his employer of his right to respect for his private life and correspondence in an employment context.
(c) Application of the above general principles in the present case
124. The Court observes that the domestic courts held that the interests at stake in the present case were, on the one hand, the applicant’s right to respect for his private life, and on the other hand, the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company (see paragraphs 28 and 30 above). It considers that, by virtue of the State’s positive obligations under Article 8 of the Convention, the national authorities were required to carry out a balancing exercise between these competing interests.
125. The Court observes that the precise subject of the complaint brought before it is the alleged failure of the national courts, in the context of a labour-law dispute, to protect the applicant’s right under Article 8 of the Convention to respect for his private life and correspondence in an employment context. Throughout the proceedings the applicant complained in particular, both before the domestic courts and before the Court, about his employer’s monitoring of his communications via the Yahoo Messenger accounts in question and the use of their contents in the subsequent disciplinary proceedings against him.
126. As to whether the employer disclosed the contents of the communications to the applicant’s colleagues (see paragraph 26 above), the Court observes that this argument is not sufficiently substantiated by the material in the case file and that the applicant did not produce any further evidence at the hearing before the Grand Chamber (see paragraph 91 above).
127. It therefore considers that the complaint before it concerns the applicant’s dismissal based on the monitoring carried out by his employer. More specifically, it must ascertain in the present case whether the national authorities performed a balancing exercise, in accordance with the requirements of Article 8 of the Convention, between the applicant’s right to respect for his private life and correspondence and the employer’s interests. Its task is therefore to determine whether, in the light of all the circumstances of the case, the competent national authorities struck a fair balance between the competing interests at stake when accepting the monitoring measures to which the applicant was subjected (see, mutatis mutandis, Palomo Sánchez and Others, cited above, par. 62). It acknowledges that the employer has a legitimate interest in ensuring the smooth running of the company, and that this can be done by establishing mechanisms for checking that its employees are performing their professional duties adequately and with the necessary diligence.
128. In the light of the above considerations, the Court will first examine the manner in which the domestic courts established the relevant facts in the present case. Both the County Court and the Court of Appeal held that the applicant had had prior notification from his employer (see paragraphs 28 and 30 above). The Court must thenascertain whether the domestic courts observed the requirements of the Convention when considering the case.
129. At this stage, the Court considers it useful to reiterate that when it comes to establishing the facts, it is sensitive to the subsidiary nature of its task and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, par. 182, 14 April 2015). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards v. the United Kingdom, 16 December 1992, par. 34, Series A no. 247-B). Though the Court is not bound by the findings of domestic courts and remains free to make its own assessment in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, par. 180, ECHR 2011 (extracts), and Aydan v. Turkey, no. 16281/10, par. 69, 12 March 2013).
130. The evidence produced before the Court indicates that the applicant had been informed of his employer’s internal regulations, which prohibited the personal use of company resources (see paragraph 12 above). He had acknowledged the contents of the document in question and had signed a copy of it on 20 December 2006 (see paragraph 14 above). In addition, the employer had sent all employees an information notice dated 26 June 2007 reminding them that personal use of company resources was prohibited and explaining that an employee had been dismissed for breaching this rule (see paragraph 15 above). The applicant acquainted himself with the notice and signed a copy of it on an unspecified date between 3 and 13 July 2007 (see paragraph 16 above). The Court notes lastly that on 13 July 2007 the applicant was twice summoned by his employer to provide explanations as to his personal use of the internet (see paragraphs 18 and 20 above). Initially, after being shown the charts indicating his internet activity and that of his colleagues, he argued that his use of his Yahoo Messenger account had been purely work-related (see paragraphs 18 and 19 above). Subsequently, on being presented fifty minutes later with a forty-five-page transcript of his communications with his brother and fiancée, he informed his employer that in his view it had committed the criminal offence of breaching the secrecy of correspondence (see paragraph 22 above).
131. The Court notes that the domestic courts correctly identified the interests at stake – by referring explicitly to the applicant’s right to respect for his private life – and also the applicable legal principles (see paragraphs 28 and 30 above). In particular, the Court of Appeal made express reference to the principles of necessity, purpose specification, transparency, legitimacy, proportionality and security set forth in Directive 95/46/EC, and pointed out that the monitoring of internet use and of electronic communications in the workplace was governed by those principles (see paragraph 30 above). The domestic courts also examined whether the disciplinary proceedings had been conducted in an adversarial manner and whether the applicant had been given the opportunity to put forward his arguments.
132. It remains to be determined how the national authorities took the criteria set out above (see paragraph 121) into account in their reasoning when weighing the applicant’s right to respect for his private life and correspondence against the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company.
133. As to whether the applicant had received prior notification from his employer, the Court observes that it has already concluded that he did not appear to have been informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual content of his messages (see paragraph 78 above). With regard to the possibility of monitoring, it notes that the County Court simply observed that “the employees’ attention had been drawn to the fact that, shortly before the applicant’s disciplinary sanction, another employee had been dismissed” (see paragraph 28 above) and that the Court of Appeal found that the applicant had been warned that he should not use company resources for personal purposes (see paragraph 30 above). Accordingly, the domestic courts omitted to determine whether the applicant had been notified in advance of the possibility that the employer might introduce monitoring measures, and of the scope and nature of such measures. The Court considers that to qualify as prior notice, the warning from the employer must be given before the monitoring activities are initiated, especially where they also entail accessing the contents of employees’ communications. International and European standards point in this direction, requiring the data subject to be informed before any monitoring activities are carried out (see paragraphs 38 and 43 above; see also, for a comparative-law perspective, paragraph 53 above).
134. As regards the scope of the monitoring and the degree of intrusion into the applicant’s privacy, the Court observes that this question was not examined by either the County Court or the Court of Appeal (see paragraphs 28 and 30 above), even though it appears that the employer recorded all the applicant’s communications during the monitoring period in real time, accessed them and printed out their contents (see paragraphs 17 and 21 above).
135. Nor does it appear that the domestic courts carried out a sufficient assessment of whether there were legitimate reasons to justify monitoring the applicant’s communications. The Court is compelled to observe that the Court of Appeal did not identify what specific aim in the present case could have justified such strict monitoring. Admittedly, this question had been touched upon by the County Court, which had mentioned the need to avoid the company’s IT systems being damaged, liability being incurred by the company in the event of illegal activities in cyberspace, and the company’s trade secrets being disclosed (see paragraph 28 above). However, in the Court’s view, these examples can only be seen as theoretical, since there was no suggestion that the applicant had actually exposed the company to any of those risks. Furthermore, the Court of Appeal did not address this question at all.
136. In addition, neither the County Court nor the Court of Appeal sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the actual contents of the applicant’s communications.
137. Moreover, neither court considered the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings. In this respect the Court notes that the applicant had received the most severe disciplinary sanction, namely dismissal.
138. Lastly, the Court observes that the domestic courts did not determine whether, when the employer summoned the applicant to give an explanation for his use of company resources, in particular the internet (see paragraphs 18 and 20 above), it had in fact already accessed the contents of the communications in issue. It notes that the national authorities did not establish at what point during the disciplinary proceedings the employer had accessed the relevant content. In the Court’s view, accepting that the content of communications may be accessed at any stage of the disciplinary proceedings runs counter to the principle of transparency (see, to this effect, Recommendation CM/Rec(2015)5, cited in paragraph 43 above; for a comparative-law perspective, see paragraph 54 above).
139. Having regard to the foregoing, the Court finds that the Court of Appeal’s conclusion that a fair balance was struck between the interests at stake (see paragraph 30 above) is questionable. Such an assertion appears somewhat formal and theoretical. The Court of Appeal did not explain the specific reasons linked to the particular circumstances of the applicant and his employer that led it to reach that finding.
140. That being so, it appears that the domestic courts failed to determine, in particular, whether the applicant had received prior notice from his employer of the possibility that his communications on Yahoo Messenger might be monitored; nor did they have regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or to the degree of intrusion into his private life and correspondence. In addition, they failed to determine, firstly, the specific reasons justifying the introduction of the monitoring measures; secondly, whether the employer could have used measures entailing less intrusion into the applicant’s private life and correspondence; and thirdly, whether the communications might have been accessed without his knowledge (see paragraphs 120 and 121 above).
141. Having regard to all the above considerations, and notwithstanding the respondent State’s margin of appreciation, the Court considers that the domestic authorities did not afford adequate protection of the applicant’s right to respect for his private life and correspondence and that they consequently failed to strike a fair balance between the interests at stake. There has therefore been a violation of Article 8 of the Convention.
II. Application of Article 41 of the Convention
142. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. Pecuniary damage
143. Before the Chamber, the applicant claimed 59,976.12 euros (€) in respect of the pecuniary damage he had allegedly sustained. He explained that this amount represented the current value of the wages to which he would have been entitled if he had not been dismissed. At the hearing before the Grand Chamber, the applicant’s representatives stated that they maintained their claim for just satisfaction.
144. In their observations before the Chamber, the Government stated that they were opposed to any award in respect of the pecuniary damage alleged to have been sustained. In their submission, the sum claimed was based on mere speculation and there was no link between the applicant’s dismissal and the damage alleged.
145. The Court observes that it has found a violation of Article 8 of the Convention in that the national courts failed to establish the relevant facts and to perform an adequate balancing exercise between the applicant’s right to respect for his private life and correspondence and the employer’s interests. It does not discern any causal link between the violation found and the pecuniary damage alleged, and therefore dismisses this claim.
2. Non-pecuniary damage
146. Before the Chamber, the applicant also claimed € 200,000 in respect of the non-pecuniary damage he had allegedly sustained as a result of his dismissal. He stated that because of the disciplinary nature of the dismissal, he had been unable to find another job, that his standard of living had consequently deteriorated, that he had lost his social standing and that as a result, his fiancée had decided in 2010 to end their relationship.
147. The Government submitted in reply that the finding of a violation could in itself constitute sufficient just satisfaction. In any event, they submitted that the sum claimed by the applicant was excessive in the light of the Court’s case-law in this area.
148. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant.
B. Costs and expenses
149. Before the Chamber, the applicant also claimed 3,310 Romanian lei (RON) (approximately € 750) in respect of the costs and expenses incurred in the domestic courts, and RON 500 (approximately € 115) for the fees of the lawyer who had represented him in the domestic proceedings. He claimed a further € 500 for the fees of the lawyers who had represented him before the Court. He produced the following in support of his claim:
– copies of the legal-aid agreement and of the receipt for payment of the sum of RON 500, corresponding to his lawyer’s fees in the domestic proceedings;
– documents proving that he had paid his employer the sums of RON 2,700 and RON 610.30 in respect of costs and expenses;
– a copy of the receipt for payment of the sum of RON 2,218.64, corresponding to the fees of one of the lawyers who had represented him before the Court.
The applicant did not seek the reimbursement of the expenses incurred in connection with the proceedings before the Grand Chamber.
150. In their observations before the Chamber, the Government requested the Court to award the applicant only those sums that were necessary and corresponded to duly substantiated claims. In that connection, they submitted that the applicant had not proved that he had paid € 500 in fees to the lawyers who had represented him before the Court, and that the receipt for payment of a sum of RON 500 in fees to the lawyer who had represented him in the domestic courts had not been accompanied by any supporting documents detailing the hours worked.
151. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, par. 187, ECHR 2016 (extracts)). In the present case, having regard to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicant the sum of € 1,365 covering costs under all heads.
C. Default interest
152. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the court
1. Holds, by eleven votes to six, that there has been a violation of Article 8 of the Convention;
2. Holds, by sixteen votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;
3. Holds, by fourteen votes to three,
(a) that the respondent State is to pay the applicant, within three months, € 1,365 (one thousand three hundred and sixty-five euros) in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.