Фундаментальное право на тайну коммуникаций на рабочем месте: применение доктрины европейского суда по правам человека

I. THE RECENT DOCTRINE OF THE ECHR ON THE NECESSARY RESPECT OF THE FUNDAMENTAL RIGHTS OF THE EMPLOYEE IN THE LABOUR RELATIONSHIP
The possibility of employershaving control over the use that employees make of computer equipment at work, and if this use is incorrect, thesanction that follows, is an aspect of utmost importance currently. In this sense, it is important to analyse the latest criteria of the European Court of Human Rights(ECHR) and the Spanish Constitutional Court (CC) to determine the extent to which the Spanish legal system respects them.
In this sense, we can start from the recent and important Judgment of the Grand Chamber of the ECHR of September 5 2017, which rectifies the previous one of the Fourth Chamber of the Court of January 12 2016. In the case at hand, the employee was dismissed because he failed to comply with the internal regulations of the company -known by all staff - prohibiting the use of technological resources made available bythe employer for personal purposes (that employee used a corporate Yahoo Messenger instant messaging account to send private emails, thus violating the objective of its exclusive professional use). Theregulations also provided for the possibility of corporate control of such computer resources. The company checked both the professional and private email accounts of the employee and discovered the irregular use, but as he initially denied it, the company proceeded to broadcast a transcript of the private messages exchanged with his family and girlfriend. The employee challenged the dismissal in his country (Romania) and requested its nullity for violation of his right to private and family life, as well as the secrecy of communications, which covers private correspondence, recognised in the national constitutional norms and Article 8.1 of the European Convention on Human Rights. Both at first instance and onappeal, the claim was dismissed because the Court understood that the employer had acted in accordance with the law (internal regulations) and that theirconduct was reasonable and proportionate. The reasoning was that the surveillance of the email accounts was the only way to find out if the employee had breached his contractual obligations and there was no other method of surveillance less harmful to his fundamental rights. In addition, the employee had been advised of the possibility of online activity being monitored and, therefore, he had no reasonable expectation of privacy.
Following an appeal to the ECHR, the Fourth Chamber decided in 2016 by majority decision – of 6 to 1 – that the employer acted correctly by virtue of his power to monitor and control work, without noting anyoverreaching or interference in life private, from the assumption that the email account was professional, and it ratified the national judgments. However, the minority vote opinedthat it was not fully proven that the worker had sufficient knowledge of the limitations imposed by the internal ruleson the private use of technology, something thatthe employer has to prove .