As technology continues to advance, employers and employees alike are struggling to find the balance of appropriate use of personal correspondence in the workplace.

THIS past fall, the ECHR gave a groundbreaking decision[1] that will push state parties to review their legislation regarding employment relationships. The court held that employees’ e-mails cannot be monitored by employers unless detailed prior notice is given.

The Grand Chamber of the European Court of Human Rights (“ECHR”) (“Grand Chamber”) decided a case on September 5, 2017 concerning the monitoring of an employee’s electronic communication by a private employer. This milestone decision was mostly related to the protection of an employee’s private life and private correspondence from the use of technology provided by the employer in the workplace. The court ruled that a general policy permitting the monitoring of employee correspondence in the workplace was not sufficient to prevent employer monitoring from violating Article 8 of the European Convention of Human Rights (“Convention”). The holding implies that in order for such monitoring to be permissible there must be a more detailed policy in place, or the employees must be informed in advance of the extent and nature of the monitoring or the possibility that the employer might have access to the actual contents of their correspondence.

Bărbulescu v. Romania

In this case, the applicant Bărbulescu’s (“Applicant”) employment contract was terminated by his employer (“Employer”) due to a breach of the Employer’s internal regulation which prohibits personal use of the Internet within the workplace. The Applicant was employed by a private company as an engineer in charge of sales and created a Yahoo Messenger account upon the Employer’s request to respond to client enquiries. After a while, the Employer informed the Applicant that his Yahoo Messenger communications had been monitored for a period of time and the records showed that he had used the Internet for personal purposes. After the Employer presented the Applicant with a forty-five page transcript of his communications on Yahoo Messenger that included short messages exchanged with his fiancée and brother, the Applicant confronted the Employer saying the company was in violation of the Criminal Code due to his right to privacy of his correspondence. Later, the Applicant’s employment contract was terminated by the Employer due to breach of the company’s internal regulation, which said: “It is strictly forbidden to disturb order and discipline within the company’s premises and especially… to use computers, photocopiers, telephones, telex and fax machines for personal purposes.[2]

Following fruitless challenges before national courts, the Applicant submitted an application to the Chamber of the ECHR which rendered a decision in favor of the Employer. According to the judgment, the Employer’s monitoring of the Applicant’s communications was within the framework of disciplinary proceedings, and the Employer acted within the context of the disciplinary powers provided by the Romanian Labor Code. The ECHR assessed that the employee’s Yahoo Messenger account contained professional messages; thus, the Employer´s monitoring was proportionate. The Applicant then appealed the case to the Grand Chamber, which only accepts exceptional cases.

Striking the Balance between Employee Privacy and Employer Rights

The Grand Chamber accepted this case and overturned the initial decision of the Chamber. The Grand Chamber determined that the previous court had failed to strike a fair balance between the interests at stake, namely the right for private life and correspondence, and the Employer’s right to take measures to ensure discipline within the workplace. To find this balance, the Grand Chamber considered the following factors: (i) the specific reasons justifying the introduction of the monitoring measures; (ii) whether the employer could have used measures entailing less intrusion into the Applicant’s private life and correspondence; and (iii) whether the communications might have been accessed without the Applicant’s knowledge. 

Remarkably, the prior courts did not considered whether the Applicant received prior notice that his communications might be monitored from his Employer or whether or not there were legitimate reasons to justify monitoring the Applicant. Instead, the courts only emphasized that the Employer must take the measures necessary to avoid damage to the company’s IT systems. Moreover, the prior judgments had not evaluated whether the aim pursued by the Employer could have been achieved by methods less intrusive than obtaining the full context of the Applicant’s communications. The Grand Chamber ultimately concluded that the Applicant was not informed in advance of the extent and nature of the Employer’s monitoring or its possibility and that the disputed conduct of the Applicant had not exposed the company to any risks. The Grand Chamber also held that the previous judgments had not adequately protected the Applicant’s right to respect for his private life and correspondence and there had indeed been a violation of Article 8 of the Convention.

Impact on Legislation Internationally

The impact of this decision on individual jurisdictions is rather indirect. In principle, the state parties have agreed to comply with the ECHR’s decisions as per Article 46 of the Convention. Even though there is no direct institution that monitors state party legislative compliance to newly granted decisions, the state parties are inclined to bring their systems into compliance with decisions either rendered for themselves or for another state party in order to avoid similar violations of the Convention. Consequently, it would be beneficial for Turkey to make amendments in its relevant legislation regarding the privacy rights of the employees within the workplace.

It is expected that the Grand Chamber’s decision will push the Turkish legislative body to review its approach on this matter. Under Turkish Law, monitoring employees’ correspondence has always been a highly discussed topic; however, no specific regulation has been enacted. Academics tend to approach this issue from two different perspectives: that of the employment relationship between the parties and that of the protection of employee personal data. As a matter of employment law, even though employees are obliged to dedicate their time and effort to the performance of their work, employers may nevertheless allow the personal use of e-mail in the workplace within certain limits. In this case, the employer can monitor correspondence with the sole aim of supervising compliance with limits. Conversely, if personal use is strictly prohibited, all correspondence is presumed to be made for professional purposes and thus can be monitored by the employer within its right to supervise the performance of the employee. Considering the protection of personal data of employees, monitoring the content of correspondence should always be based on a valid cause as per the Law on Protection of Personal Data numbered 6698. In fact, this issue was examined before Turkish Constitutional Court with respect to an individual application made in 2013.

Conclusion

Since use of technology in the workplace has increased and brought along questions with respect to personal data, we believe that the ECHR will review many similar cases in the near future. We see that as of late, many state parties are regulating new provisions for the protection of privacy and correspondence of the employees under relevant legislation. However, due to the binding nature of the ECHR decision and possible monetary compensation orders to be made by the ECHR, we believe that this decision will serve as a reminder to the Turkish legislative body to bring this matter to its heavy agenda. Nevertheless, there is always the possibility that an applicant may consume all legal procedures in Turkey and eventually submit an application to the ECHR.