Intellectual Property Law

European Approach to Privacy in the Workplace

By IBLS Editor

The employees' right to privacy in Europe is ingrained in their culture and it has evolved as a human right since the French revolution, which created new employment rights in Europe and various countries in the world.  The Council of Europe is one of the European highest authorities on human rights.  Thus, the Council's legal principles and rulings on data protection and privacy are relevant for the European issue of privacy in the workplace.  Besides the Council's principles, the European Union's directives on electronic surveillance of employees in the workplace and their respective member states' implementing laws compose the legal framework of European employees' surveillance in the workplace. 

The Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (ECHR) is the community's uniform legislation on human rights.  ECHR rules are enforced by the European Court of Human Rights which is the last legal forum for claims that have not been solved by the member states' courts.

ECHR, Art. 8 states: "Everyone has the right to respect for his private and family life, his home, and his correspondence."  Since 1992, the European Court on Human Rights, through the ruling on Niemietz v. Germany (251 Eur. Ct. H.R. 23 (1992)), expanded the definition 'private life and correspondence' to include business relations, e-mails, and any other form of electronic communication. Indeed, the court in this case held that as far as it related to privacy, there is no distinction between private or professional correspondence.  Therefore, according to this ruling, every European has the right to respect for his business relations, e-mails, and electronic correspondence. Besides Niemietz, other rulings from the European Court of Human Rights have expanded the meaning of ECHR  Art. 8.

In Halford v. UK Gov. (39 Eur. Ct. H.R. 1004 (1997)), the European Court on Human Rights held that the employer's surveillance of the employee's calls at work unjustifiably interfered with the employee's right to privacy and correspondence.  Again, the Court held that ECHR Art. 8 protects all correspondence such as those conducted via e-mail, fax, wireless, and any technological means of correspondence.  Despite the employer's efforts, the Court rejected the argument that a distinction should be made between private and professional correspondence.     

Yet, ECHR Art. 8 is only applicable after remedies under domestic laws and EU directives on employees' surveillance are exhausted. 

One of the first EU Directives protecting personal information and data is Council Directive 95/46/EC.  This Directive provides data subjects control over the collection, transmission, and use of their personal information.  Among the rights and obligations established by this Directive, data subjects have the right to be notified of collection of personal information.  Even though this Directive is not directly addressing the issue of employer's surveillance, it definitely inserts privacy principles already argued in employer/employee disputes regarding surveillance in the workplace. 

Another EU Directive dealing with privacy and e-communications is EU Directive 2002/58/EC.  As a general principle, Directive 2002/58 prohibits interception of private communications over networks; this includes e-mails, instant messengers, and phone calls.  However, the Directive specifically addresses public networks and public employees; thus, surveillance of private employee's communications under internal-private networks is not protected by this Directive.  Nonetheless, European private employers have established internal policies informing incoming employees about the guidelines on the use of Internet and other equipment in the workplace.  These policies are part of the work contract and upheld by most European domestic courts.  In fact, policies prohibiting the use of electronic communications for immoral, criminal, or not job-related activities are deemed legally binding by courts in the EU member states.  

Full post as published by IBLS Internet Law Blog on June 11, 2008 (boomark / email).