Tag: Monitoring

The limits of government surveillance according to the ECtHR

Limits? What do you mean by 'limits'?

Limits? What do you mean by ‘limits’?

In two very recent judgements, the European Court of Human Rights (hereafter ECtHR) has made several essential points in regards of surveillance conducted by public authorities and its relation with Article 8 of the European Convention of Human Rights (hereafter ECHR).

Article 8 provides that governmental interference with the right to privacy must meet two criteria. First, the interference must be done e conducted “in accordance with the law” and must be “necessary in a democratic society”. Such interference must aim to achieve the protection of 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”.

In previous cases regarding surveillance conducted by public authorities, the ECtHR had already concluded that any interference with the right to respect for private life and correspondence, as enshrined in Article 8 of the ECHR, must be strictly necessary for safeguarding the democratic institutions. However, it has now further clarified its interpretation.

In these recent decisions, the ECtHR concluded that the secret surveillance, as carried out in the manner described in the facts of the cases, violated Article 8 of the Convention.

The Roman Zakharov v. Russia decision, issued on the 4th December 2015, concerned the allegations of the editor in chief of a publishing company that laws enabling the installation of equipment which permitted the Federal Security Service (“the FSB”) to intercept all his telephone communications, without prior judicial authorisation, three mobile network operators interfered with his right to the privacy of his telephone communications.

The Court considered that “a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” must be verified and the interception shall meet the requirements of necessity and proportionality.

The Szabó and Vissy v. Hungary decision, issued on the 12th January 2016, concerned the allegations of members of a non-governmental organisation voicing criticism of the Government that the legislation enabling police to search houses, postal mail, and electronic communications and devices, without judicial authorization, for national security purposes, violated the right to respect for private life and correspondence.

The Court considered that: “the requirement ‘necessary in a democratic society’ must be interpreted in this context as requiring ‘strict necessity’ in two aspects. A measure of secret surveillance can be found as being in compliance with the Convention only if it is strictly necessary, as a general consideration, for the safeguarding the democratic institutions and, moreover, if it is strictly necessary, as a particular consideration, for the obtaining of vital intelligence in an individual operation. In the Court’s view, any measure of secret surveillance which does not correspond to these criteria will be prone to abuse by the authorities with formidable technologies at their disposal.” Consequently, it must be assessed if “sufficient reasons for intercepting a specific individual’s communications exist in each case”.

In both cases, by requiring surveillance activities to be individually targeted, the ECtHR has established that any indiscriminate interception is unacceptable. This is a most welcomed position considering the well-known legislative instruments and initiatives intended to strength the legitimacy of massive monitoring programs in many EU Member States.

Monitoring of employees in the workplace: the not so private parts of a job in the EU private sector

Monitoring you? Us?

Monitoring you? Us? 1)Copyright by MrChrome under the CC-BY-3.0

In a case referring to the employees’ rights to the privacy of their correspondence and communications, the European Court of Human Rights (hereafter ECtHR) has ruled that employers are entitled to monitor their employees’ private online communications conducted through means of a messaging account provided for professional purposes.

The details of the case are as follows: the employment’s contract of Romanian engineer was terminated by his employer, back in 2007, after the company he worked for found out that he was using messaging services, such as Yahoo Messenger, to conduct personal contacts, namely with his brother and fiancée. The account was created, at the employer’s request, strictly for professional purposes and a personal use was specifically forbidden by the company policy, of which the employee was made aware. The internal regulation established, inter alia, that “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.”

While the company considered that the employee had breached the company rules by using the service for personal purposes, and thus the termination of the employment’s contract was justified, the employee argued that the termination decision was illegal due to be founded on a violation of his rights to respect for his private life and correspondence.

Among the pertinent legal instruments deemed applicable and referred by the ECtHR are, obviously, the European Convention of Human Rights (hereafter ECHR), the Directive 95/46/EC and the Art.29WP “Working document on the surveillance and the monitoring of electronic communications in the workplace”, which I also have addressed here, in regards of the issue of the monitoring of employees.

The core issue at stake was whether, considering the factual context described, the employee could have had a reasonable expectation of privacy when communicating from the Yahoo Messenger account that he had registered at his employer’s request and considering that the employer’s internal regulations, of which he was aware, strictly prohibited employees from using the company’s computers and resources for personal purposes.

Having into consideration that the use of messaging was only allowed for solely professional purposes, the Court deemed that it was not “unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours.” (par. 59)

In this regard, it considered that “the employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate. The court sees no reason to question these findings.” Particularly relevant to the formation of that assumption was the fact the employee had initially claimed that he had used the messaging account to advise the company’s clients. (par. 57)

Therefore, despite concluding that an interference with the applicant’s right to respect for private life and correspondence within the meaning of Article 8 of the ECHR indeed occurred, the ECtHR concluded that there has been no violation of such rights, because “the employer’s monitoring was limited in scope and proportionate”.

The claim that the employee’s right to privacy and the confidentiality of his correspondence had been violated was therefore dismissed.

This ruling is in line with that respecting the Benediktsdóttir v. Iceland case, in which the ECtHR concluded that the right to privacy and to correspondence has to be balanced with the other rights, namely those of the employer.

However, the dissenting opinion of the judge Pinto de Albuquerque deserves particular mentioning. Particularly based on the very personal and sensitive nature of the employee’s communications, the non-existence of an Internet surveillance policy, duly implemented and enforced by the employer and the general character of the prior notice given to employees in regards of the monitoring conducted on the communications, it leads one to wonder if the assessment regarding the respect of the necessity and proportionality principles could have been as straightforward as it firstly seemed. Namely considering that the employer also accessed the employee’s own personal account.

Thus said, the specific details of the case should not be overlooked and rushed or generalized conclusions should be avoided.

As pointed out by Pinto de Albuquerque, in the absence of a prior notice from the employer that communications are being monitored, the employee has a reasonable expectation of privacy. Moreover, the  complete prohibition of the use of the Internet by employees for personal purposes is inadmissible. Furthermore, the practice of complete, automatic and continuous monitoring of Internet usage by employees is also forbidden.

The fact that the employee was adequately informed of the internal regulations imposing restriction upon the use of the messaging service for personal purposes and that employer had accessed the communications in the belief of their professional nature are paramount elements in this context. In no way must this ruling be interpreted as a general faculty of employers to monitor or snoop on their employees’ private communications.

Indeed, as clearly put by the Art.29WP in the above mentioned document, the simple fact that monitoring or surveillance conveniently serves an employer’s interest could not justify an intrusion into workers’ privacy.

In fact, as outlined by the judge Pinto de Albuquerque in his dissenting opinion: “if the employer’s internet monitoring breaches the internal data protection policy or the relevant law or collective agreement, it may entitle the employee to terminate his or her employment and claim constructive dismissal, in addition to pecuniary and non-pecuniary damages.”

Therefore, employers should take special care in providing appropriate information in regards of the use that employees are allowed to make of the company’s communication means, namely for personal purposes. Moreover, employers intending to conduct monitoring activities over their employee’s activities should implement a proper and clear monitoring policy, restricted to what is necessary and proportionate to its interests and goals. It is of paramount importance that employees are able to understand the nature, scope and effects of the monitoring, namely how their communications are controlled, what content is accessed, how is it analysed and what information is recorded and kept and for what purposes. In this context, data protection rules fully apply, namely conferring employees with the rights to access all the information held about them and to obtain a copy of such records.

And to completely prevent unpleasant surprises, a word of advice to employees: do not rely on your employer’s good judgement. Avoid altogether using means provided to you for professional purposes to conduct private activities or communications.

References   [ + ]

1. Copyright by MrChrome under the CC-BY-3.0

Monitoring of employees in the workplace: the very private parts of a job in the EU private sector

Let us all see what you are doing.

Let us all see what you are doing.1)Copyright by MrChrome under the CC-BY-3.0

Whilst not all employers in the U.S.A. monitor their employees’ communications and activities, the majority do so, namely to evaluate their professional performance, to protect trade secrets, to prevent information security breaches or to avoid or reduce their liability in lawsuits.

So, incoming and outgoing email correspondence, telephone calls, websites visited and documents saved on the computer may be only some of the data accessed in this context.

This surveillance of employees’ electronic communications and activities over employer-provided facilities are generally deemed unlawful under the European Union law. Member States legal systems usually include constitutional laws, telecommunications laws, labour laws and criminal laws which are intended to be dissuasive.

Currently, there is no specific EU legislation regarding the privacy and protection of workers’ personal data at work.

Nevertheless, Article 31(1) of the Charter of Fundamental Rights of the European Union, whose application is mandatory whenever Member States apply EU law, states: “Every worker has the right to working conditions which respect his or her (…) dignity”.

In parallel, there are two EU Directives which can be applicable in these professional contexts. Although they do not specifically deal with any aspect of employment relationships nor address employee monitoring, they establish some privacy principles which are applicable regarding surveillance at workplace. These provisions are then furthered by Member States through their national legislation.

Firstly, we have the 95/46/EC Directive which relates to the protection of individuals with regard to the processing of personal data. Under this framework, data subjects are provided control over the collection, transmission, and use of their personal information. In fact, this instrument foresees that data subjects have the right to be notified of collection of personal information.

In this context, employers have to ensure that their surveillance is legitimate and restricted and must be transparent regarding any surveillance conducted. Any monitoring of the employees communications and activities, namely regarding the use of e-mail, the internet or phones, without their employee’s knowledge or consent, is unlawful.

Secondly, the 2002/58/EC Directive relates to the processing of personal data and the protection of privacy in the electronic communications sector. The interception of  communications over private networks, including e-mails, instant messengers, and phone calls, and generally private communications, are not covered as the instrument only refers to publicly available electronic communications services in public communication networks.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ‘ECHR’), in its article 8, reads as follows: “Everyone has the right to respect for his private and family life, his home, and his correspondence”.

Whilst the right to privacy at work has not yet be considered by the Court of Justice of the European Union, the European Court of Human Rights (hereafter ‘ECtHR’) has already ruled that the right to privacy right is not restricted to the household and extends to the workplace environment.

In fact, in Köpke v Germany, the Court stated as follows: “(…) that the concept of private life…may include activities of a professional or business nature and may be concerned in measures effected outside a person’s home or private premises(…)”.

In the Niemietz v. Germany case, the ECtHR included business relations, e-mails, and any other form of electronic communication in the concept of ‘private life and correspondence’, no distinction being made between private or professional correspondence.

In Halford v. UK Gov., the ECtHR held that the employer’s surveillance of the employee’s calls at work unjustifiably interfered with the employee’s right to privacy and correspondence. Communications via e-mail, fax, wireless, and any technological means is covered by the concept of correspondence.

Moreover, in the ruling Copland v United Kingdom, the ECtHR concluded that the fact that the calls or the e-mail usage occur in the office and, at least in theory, are business related, was irrelevant. Business correspondence and telephone calls may contain personal information, which is protected by human rights and by data protection law.

It also found that, even if the telephone monitoring was limited to “the date and length of telephone conversations” and “the numbers dialled,” and do not involve the content of the communications, it still violates article 8 of the ECHR.

The Court stated as well that article 8 is infringed where the monitoring is not previously communicated to the employees, as they have, in consequence, a “reasonable expectation” that they will not be.

However, a worker’s right to privacy at work is not absolute.

In Benediktsdóttir v. Iceland, the ECtHR concluded that the right to privacy and to correspondence has to be balanced with the other rights, namely those of the employer.

In this context, although not legally binding, the Article 29 Working Party (hereafter WP29) opinions provide important guidance. In fact, national data protection authorities take them into account when applying and enforcing national laws.

The WP29 issued an opinion on the processing of personal data in the employment context in 2001, concluding that “[t]here should no longer be any doubt that data protection requirements apply to the monitoring and surveillance of workers whether in terms of email use, internet access, video cameras or location data.” Therefore, monitoring must be proportionate, not excessive for the intended purposes, and carried out in the least intrusive way possible. Furthermore, it stated that, under the Data Protection Directive, employers may process data concerning their employees only with “unambiguous consent” or if the processing is “necessary.”

In 2002, the WP29 issue a Working Document on the surveillance of electronic communications in the workplace, in which was argued that the employee’s right to privacy should be balanced with the legitimate rights and interests of the employer, such specific and important business need, as efficiency or the right to protect the employer from harm caused by employees’ actions. Therefore, the monitoring activities should be necessary, proportionate and transparent.

In the WP29’s viewpoint, any monitoring of electronic communications should be exceptional, namely when necessary to obtain to obtain proof of certain actions of the worker; detect unlawful activity; detect viruses; or guarantee the security of its systems. Therefore, concealed or intrusive monitoring is generally unlawful.

In 2005, in its annual report, the WP29 has affirmed that “[i]t is not disputed that an e-mail address assigned by a company to its employees constitutes personal data if it enables an individual to be identified.

The WP29 stressed, in another Opinion, in 2006, that all online communications in the workplace are subjected to confidentiality protection, including those sent from workplace equipment for private as well as professional purposes. It suggested seven principles to ensure a proper monitoring: necessity regarding a specified purpose; a specified, explicit and legitimate purpose; prior notice to employees about the monitoring; the monitoring should be aimed to safeguard employer’s legitimate interests; personal data processed in connection with any monitoring must be adequate, relevant, and not excessive with regard to the purpose for which they are processed; data must be accurate and not retained for longer than necessary; and appropriate technical and organisational measures shall be implement regarding security.

The requirements at stake may vary according to the monitoring technologies used as some will require stricter standards according to the extent of interference with private life. For instance, in Uzun v. Germany, the ECtHR concluded that the monitoring via GPS is not as intrusive telephone tapping.

Considering that the data collected by the employer may constitute sensitive data, it can only be processed in the cases foreseen in Article 7 of the Directive 95/46. In this context, considering the disparity in the contractual positions at stake the employee’s consent may not deemed to legitimize the processing.

In this context, it is quite advisable for private employers established in the EU to set up clear and acknowledged internal policies or guidelines regarding the use of Internet and electronic equipment in the workplace, for instance as part of the work contract.

This legal and jurisdictional context highlights the challenge that companies and other organizations face when doing business in the European Union, especially those which also operate under U.S.A. law.

References   [ + ]

1. Copyright by MrChrome under the CC-BY-3.0

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