In a ruling handed down on 05 September, the European Court of Human Rights (ECHR) set out the conditions under which an employer has the right to monitor an employee’s electronic communications. This particular case led to a second examination by the Court’s Grand Chamber of a ruling the ECHR had delivered on 12 January 2016 this time resulting in a contrary outcome.

The applicant was contesting his employer’s decision to terminate his employment contract based on the fact he had sent personal messages via an instant messaging application that his employer had requested be installed for communicating with customers. In a ruling handed down on 12 January 2016, the ECHR based its decision on the notion of an employee’s reasonable expectation in a context where in its internal regulations the employer had explicitly prohibited employees from using computers and company resources for personal ends. After taking both sides’ interest into account the court disallowed the applicant’s case.

However for the Court’s Grand Chamber, the decisions of which cannot be appealed, the earlier reasoning did not adequately take both parties’ interests into consideration. The Court held that the various courts that had failed to determine if the employer had warned the employee in advance that personal communications may be monitored, or if the employee had been informed of the nature or the extent of the monitoring, or the degree of intrusion into his private life and correspondence. In addition, they had failed to determine the specific reasons justifying the introduction of the monitoring measures and if the employer could have used measures entailing less intrusion into the employee’s private life and correspondence and in addition if communications might have been accessed without the employee’s knowledge. In light of this the different, court had not adequately protected the applicant’s right for a private life and correspondence.

The Grand Chamber lists the procedural guarantees it deems necessary be put in place as part of a monitoring framework and as such choose to copy the entirety of highly detailed point number 121 and 122:

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 been notified 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) the extent 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, § 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, § 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, § 45, and Köpke, cited above).

European Court of Human Rights (ECHR) decisions are not binding, but its jurisprudence does influence National Court judges committed to upholding the Convention on Human Rights.