Lorna Woods, Professor of Internet Law, University of Essex
Background
The case of Bărbulescu concerned the extent to which employers could track
employee communications, including Internet use, when those communications
might include private correspondence rather than business communications. Here,
an employer dismissed an employee for failing to respect a prohibition on the use
by employees of work equipment for private reasons. The employee sued his
employer in the Romanian courts but lost, so brought a claim under Article 8
ECHR, which protects the right to private and family life, home and correspondence.
In particular, Bărbulescu objected to the fact that, to find that he had
violated the policy, his employer monitored his communications. This he claimed
was contrary to the jurisprudence of the European Court of Human Rights in Copland
v UK. The Fourth Section of the
Strasbourg court held,
at the beginning of 2016, that the legal situation in Romania did not give rise
to a violation of Article 8. While the media tended to summarise the position
as the court permitting entirely unrestricted monitoring, this was not entirely
the position as noted by Steve Peers here.
The matter was in any event referred to the Grand Chamber and it is with this
judgment that this note is concerned. The Grand Chamber came, albeit not
unanimously, to the opposite conclusion from the Fourth Section, finding that
there had been a violation of Article 8 ECHR.
So, why has it come to this conclusion?
Judgment
The Grand Chamber first
considered the applicability of Article 8 to the situation in issue. Re-iterating a long list of previous cases,
it emphasised that Article 8 should not be understood narrowly and includes
both the right to develop relationships with others and professional activities
or activities taking place in a public context. The Court noted two further
separate points. First it commented that:
[r]estrictions
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 [para 71].
In this context work is important
in providing the possibility for individuals to develop relationships with
others. Secondly, while ‘life’ in the list of interests protected by Article 8 is
qualified by the adjective ‘private’, the term ‘correspondence’ is not so
limited [para 72]. The Court noted that while the test of a reasonable
expectation of privacy has been used to determine the scope of Article 8, it
here re-iterated that is a significant though not necessarily conclusive factor
[para 73]. The Court concluded that while the employee was aware of the ban, he
was not aware of the monitoring; that some of the content was intimate in
nature; that he alone had the password to the account. The Court left open the
question of whether Bărbulescu had a reasonable expectation of privacy in the
light of the employer’s policy (of which Bărbulescu was aware), but then held
that ‘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 …’ [para 80]. Both the right to private life
and the right in relation to correspondence were therefore engaged.
The Court then considered whether
there had been a violation. In this the Court was faced with the question of
whether there was a positive obligation, given that the employer was not a
public body. The Court noted that the monitoring of the communications could
not be regarded as “interference” with Bărbulescu’s right by a State authority
[para 109]. Nonetheless, the measure taken by the employer was accepted by the
national courts, thus engaging the State’s positive obligations [paras
110-111]. It re-stated that the test was that of whether a fair balance had
been struck between the competing interests. The Court noted that labour law
has specific characteristics which allows for a wide margin of appreciation.
This is not, however, unlimited; States must ensure that there are safeguards
in respect of the monitoring of communications. It identified a number of
issues:
-
Clear advance notification of the possibility of
monitoring;
-
The extent of the monitoring and the degree of
intrusion, taking into account the difference between monitoring ‘flow’ of
communications and their content;
-
The justification for the monitoring;
-
Whether less intrusive mechanisms for monitoring
exist;
-
The consequences for the employee;
-
Whether adequate safeguards were in place.
Further, there should be the
possibility of a domestic remedy. The Grand Chamber took the view that the
domestic courts did not consider or did not give appropriate weight to all the
issues identified [para 140]. Notably, it did not appear the employer had given
Bărbulescu sufficient advance notice of "the extent and nature of [its]
monitoring activities, or of the possibility that [it] might have access to the
actual content of his messages". The Court was also sceptical of the
national courts acceptance of the justification for the intrusion. There was
therefore a violation of Article 8.
There was dissent, however, on the assessment of the national courts’
approach to the matter.
Comment
The headline news from this is
that the Grand Chamber came to a different determination on the issue of breach
from the Fourth Section. It should be noted, however, that even that chamber
did not suggest that unlimited monitoring would be permissible (see e.g. Steve
Peers’ analysis). Nonetheless in purely practical terms, the Grand Chamber
judgment provides a clear statement that workplace privacy cannot be reduced to
zero, as well as a list of considerations that will be useful not just for
national courts but also employers in considering policies regarding personal communications
in the workplace. Note that this case concerned a private employer not – as in Halford
and Copland – a public body as
employer so the considerations highlighted will be of relevance to all
employment relationships. In this, the Grand Chamber seemed to respond to some
of the concerns expressed by Judge Pinto de Albuquerque in his dissent from the
Fourth Section judgment regarding the factual specificity of the case. The
judgment also seems to recognise the importance of work as part of daily life,
an important point given the blurring of boundaries in the ‘always on’ culture
of smart devices in which work-related information and communications co-habit
with those of life outside work.
There are some further points to
consider. The first is the scope of Article 8 and in particular the ‘reasonable
expectation of privacy’. Article 8 lists
a number of aspects protected: ‘private and family life’ – usually seen as two
separate elements ‘private life’ and ‘family life’ – ‘home’ and
‘correspondence’. As written, it seems that these are distinct elements yet the
reasoning of the Court does not always treat them as separate; arguably the
Court’s previous approach in making the matter one of a ‘reasonable expectation
of privacy’ blurs any boundaries between these elements and in so doing, limits
the scope of protection as far as ‘correspondence’ is concerned. The Grand
Chamber seemed alive at least in some regards to this point: it specified that
there is no requirement that correspondence be private. If that is the case, however,
why is the issue of reasonable expectation of privacy relevant? Indeed, the
Grand Chamber noted that the test of reasonable expectation of privacy is not
the be all and end all of Article 8 (see para 78). Despite this recognition, the
Grand Chamber still turned the question into one of a reasonable expectation of
privacy:
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 [para
80].
Is the Court here suggesting that
correspondence is protected by Article 8 only when there is a reasonable
expectation of privacy? Seemingly so, yet the Grand Chamber continued to state:
…. 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 [para 80].
The position is consequently
somewhat unclear. It would be more straightforward were the Court to recognise
that correspondence constitutes a separate class aside from private life
however broadly understood, and to deal with scope of Article 8 as a separate
issue from that of interference and justification. The current position unfortunately seems to be
embedded in a long line of case law.
Bărbulescu is distinct from previous case law on employee
monitoring in that it involved the State’s positive obligations. The Court has
tended to adopt a different approach in regard to positive obligations than
negative obligations. Rather than look at Article 8(2) and the tests of
legitimate objective, lawfulness and necessity (in a democratic society), it
adopts a fair balance test within which the State has a broad margin of
appreciation. On this basis, the side-lining of the Copland ruling – which fell at the lawfulness stage in a standard
Article 8(2) analysis – is understandable.
The Court seems to suggest, however, that there are parallels between
positive and negative obligations:
[i]n 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 [para 112].
It is questionable whether the
derogation from an individual’s rights by state actors really should be seen as
being about a fair balance, a stance which arguably nudges the focus of
protection away from human rights as paramount. Nonetheless, here the Court
brings in factors from the standard Article 8(2) state surveillance case law aimed
at preventing abuse of secret surveillance capabilities to provide guidance in
finding the fair balance. It is noticeable that Copland is not considered but
instead the State surveillance cases of Klass
and Zakharov.
It might be that the Grand
Chamber accepted the referral because it wished to deal with failure of the
Fourth Section to consider the EU
Data Protection Directive, which protects against the collection of personal
data without the explicit consent of an individual (or justified grounds for
such collection). This point was
highlighted by Judge Pinto de Albuquerque. If so, the judgment fails to engage
with EU data protection law in any meaningful way. The Grand Chamber noted that
the national courts had considered the directive, but did not consider those
rules themselves. Insofar as the Court does refer to international and European
standards, it specifies the ILO
standards and Council
of Europe Recommendation CM/Rec(2015)5, rather than the Directive. It seems
then that there has not been any direct engagement with the substantive EU data
protection rules.
Photo credit: Aird and Berlis LLP
This comment has been removed by a blog administrator.
ReplyDelete