Back in January 2016 Sarah Thompson reported on the European Court of Human Rights (ECHR) which ruled in favour of an employer who had terminated an employee’s employment, after investigating his misuse of a company email account.
Earlier this week, the Grand Chamber of the ECHR overturned that ruling, finding that the Romanian employee’s right to privacy had in fact been infringed by his employer, when his personal messages were read in the course of an investigation, even though they were sent using company equipment and during working hours. The decision of the Grand Chamber represents the final decision of European courts on this issue, as it is the highest court of appeal and this judgment is therefore conclusive. As a result, Mr. Barbulescu is now entitled to compensation, although as can be seen from the decision, the court determined the amounts to be relatively low.
Review of this articleMany non-english speaking european media made their titles, on tuesday september 5th, about the decision of the European Court of Human Rights, on the ban, for the employers, of monitoring the employee's communications. The reality of this decision is very different.
A final decision of the highest court in EuropeThe Judgment on september 5th is rended by the Grand Chamber of the European Court of Human Rights. As it happened on appeal of the decision of the specialized Chamber of the same Court, it's a final decision that rules for the 47 european states that ratified the European Convention on Human Rights.
This decision affects nearly 1 billion citizens.
But, actually, the Court does not ban monitoring of communications practices, used by employers. It specifies the conditions to respect to be able, afterwards, to use the recorded elements.
Many complex requirements for lawful monitoring of electronic communicationsIn its decision, the Court gives many legality requirements for the employers to collect informations using private monitoring of electronic communications.
But, first of all, the Court does not consider private monitoring practices as illegal. The settlement is rather about the conditions that will allow, or not, to use in justice the informations that will have been recorded.
Private monitoring of electronic communications by employers still have a bright future.
Encryption is the only solution to protect communications against tappingThe Judgment of september 5th cannot be directly transposed into many other life situations. It's only about the facts of this examined case.
But it appears that it's the content itself of the intercepted communications that lead to qualify them as personal communications. The different courts qualify this content as "personal" or "intimate". And, that's precisely this personal character of the communications, but made during the working time and with the entreprise's means, that justifies the job firing of the plaintiff.
Once again, it's remarquable that the only way to protect communications of legal or illegal tapping is encryption.
Instant exchanges often are made by live chat. In this case, use of OTR protocol is essential to encrypt the exchanges. The emails security can be strengthed with GnuPG. This encrypting method provides privacy (the email becomes like a real mail with an envelope and not only as a postcard) and access control (only the addressee who has the private key can read the email).
Be careful, the metadata are not encrypted and are easily understood in the monitoring.
Only end-to-end encryption of all the data flow ensures privacy of exchanges. MyCrypNet operates this end-to-end encryption with all the devices used to read the emails or to chat.
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