19 September 2017

New judgment from the European Court of Human Rights concerning companies’ monitoring of private communication

The European Court of Human Rights (ECHR) recently ruled that it was contrary to the right to privacy that a Rumanian employee had been dismissed due to private use of a Yahoo account set up for work purposes. This was the case even though the internal rules prohibited use of for instance work-related Internet accounts.

At the employer's request, the employee had registered a profile on the chat website Yahoo to communicate with the customers.

According to the company’s internal guidelines, which the employee had signed, all personal use of computers, Internet, etc. was prohibited. The guidelines did not mention the possibility of monitoring, but the company had subsequently prepared an addendum to the rules in which it was emphasised that the company expected observance of the guidelines and that violations would be monitored and sanctioned.

The employee had communicated in private which the company found out about.

DISMISSED BY THE NATIONAL COURTS AND THE COURT OF FIRST INSTANCE

Both the court of first instance and the court of second instance dismissed that the employee had violated the guidelines. The national courts found that the monitoring was in accordance with national labour law and was not a violation of the right to privacy. The courts referred to the fact that monitoring was a necessity to avoid IT problems and illegal use of the Internet, and that the monitoring took place to substantiate a suspicion of abuse of the company’s Internet contrary to the company’s internal guidelines.

The court of first instance of the ECHR found that these grounds and their result were in accordance with the Human Rights Convention.

COVERED BY THE HUMAN RIGHTS CONVENTION?

The Grand Chamber - being the supreme authority of the ECHR - found, however, that the national courts had not made a sufficient review of the alleged violation of the right to privacy.

Article 8 of the Human Rights Convention determines the right to privacy, including the right to respect for the individual’s private correspondence, and the court stated that the correspondence in question was not covered by the right to respect for privacy and correspondence in article 8.

THE STATE’S POSITIVE OBLIGATIONS TO ENSURE THE INDIVIDUAL’S RIGHT TO PRIVACY

As the case concerned a private company which was not directly bound by the Convention, the court investigated whether the Rumanian state - in this case, the national courts - had observed the positive obligations applicable to states. The state’s positive obligations must provide the required safety that also private persons observe the Convention’s rights of freedom.

The court stated that when assessing the legality of monitoring, the national courts must take into account the following criteria:

  • Was the employee informed in a clear and lucid manner about the possibility of monitoring?
  • How intense was the monitoring? Did the monitoring only observe the presence of private correspondence or was the content of the correspondence reviewed?
  • Did legitimate considerations justify the monitoring?
  • Could other, less radical, measures have achieved the same results?
  • What were the consequences for the person monitored?
  • Was the person monitored sufficiently protected against abuse of the possibility to monitor?

THE COURTS HAD NOT STRUCK A BALANCE

In cases like the present concerning the state’s positive obligations, the court tests whether the state strikes a  balance between opposing considerations - in this case, the employee’s right to respect for privacy versus the company’s wish to avoid abuse of the Internet.

The court found that the national courts had not sufficiently reviewed the observance of the above criteria. For example, the courts had not sufficiently investigated the intensity of the monitoring, the legitimate considerations or the possibility of less radical measures. At the same time, the courts had blurred the transparency by accepting the possibility of comprehensive use of monitoring during disciplinary hearings. It was thereby impossible for the individual to know when he/she could risk being monitored.

For these reasons, the court found that the national courts had not struck a balance between the opposing considerations. The Rumanian state therefore had to pay compensation to the employee which amounted to the verifiable loss caused by the employee’s dismissal.

COMMENTS

The judgment shows that it is important that the employer informs its staff about the possibility of monitoring and the extent thereof.

Danish law is in line with the judgment. Danish personal data law and criminal law lay down the same restrictions as to whether and to which extent Danish companies may monitor the employees’ use of emails etc.

On 4 November 2015, the Supreme Court also attached importance to the fact that a company did not search through and read private messages to a further extent than necessary to be able to separate the part of the email correspondence relevant for the purpose of the investigation. Compensation was therefore not awarded.

related news

New judgment: Operation manager's sexual harassment did not result in compensation

26 October 2017

Recently, the Eastern High Court ruled that a company was not obliged to pay compensation to an employee even though she had been sexually harassed by the department’s operations manager.

The European Court of Justice: Redundancies - when?

9 October 2017

In two recent cases, the European Court of Justice (ECJ) ruled that an employer should have consulted the employees’ organisations before giving notice of changes that resulted in collective redundancies.

The European Court of Justice: Public servant was entitled to be reinstated in trial position

9 October 2017

The European Court of Justice (ECJ) has assessed that a public servant employed in a trial position as head of department should have been offered the same or a similar position when returning from parental leave, even though the probationary period had expired.

Compliance: E-leaning in competition law

20 September 2017

Horten now offers e-learning in competition law tailored to each company.

Exclusivity discounts: the Intel case, including record-high fine is remitted

20 September 2017

The European Court of Justice ruled that a dominant company's use of excklusivity discounts does not always constitue abuse of the company's dominant position.

European ip rights in Great Britain after Brexit

19 September 2017

Great Britain's exit from the EU will create uncertainty for both British and EU27 companies in relation to the extent and protection of intellectual property rights in Great Britain. It is therefore of great interest and importance to clarify the consequences of Great Britain’s exit and how to handle them.

Google - an overview of the summer’s EU case against the internet giant

27 July 2017

In June 2017, the European Commission ruled in the first of three pending cases against Google and ordered Google to pay a record-high fine of EUR 2.42 billion for abuse of its dominant position. According to the European Commission, Google favoured Google Shopping in its search engine.

Still waiting for a European Patent Court

20 June 2017

The agreement concerning the European Patent Court is once again delayed. The agreement concerning the establishment of a so-called unitary patent and a joint patent court was planned to come into force in December 2017, but this will presumably not be the case.

White Paper concerning the data protection regulation has arrived

29 May 2017

The Ministry of Justice has now published the long awaited White Paper concerning the data protection regulation and the legal framework for Danish legislation in this respect.

Merger control: When to notify mergers and acquisition to national competition authorities

10 May 2017

In mergers and acquisitions, it is always relevant to consider, if the transaction is subject to merger control – on either a national or an EU level. Transactions that are subject to merger control must be notified and approved, before they are implemented.

Horten advances in new Chambers and Legal 500 rankings

19 April 2017

In 2017, the leading international ranking agencies, Legal 500 and Chambers, are once again ranking Horten among the best law firms in Denmark.

Conditional approval of Maersk Line's purchase of German container shipping company

12 April 2017

The European Commission has approved Maersk Line's takeover of the German container shipping company Hamburg Südamerikanische Dampfschifffahrts-Gesellschaft KG (HSDG).

The European Commission: Aid to construction of Kriegers Flak is legal

30 March 2017

The Commission has approved the Danish state aid to the offshore wind turbine project Kriegers Flak as the project will contribute to an increased use of renewable energy in Denmark.

Extensive commitment protects innovation in connection with approved DOW/DUPONT merger

30 March 2017

The European Commission has approved the merger between DOW and DuPont after long-term commitment negotiations. The approval is conditional on DuPont selling many of its pesticide companies and its global R&D.

Conviction in bribery actions against Atea

24 March 2017

The Eastern High Court has delivered convictions in two bribery actions where Atea gave away iPhones, iPads and other IT equipment to two senior employees at the City of Copenhagen and DSB.

SAS is once again to pay major fine for participating in the Air Cargo cartel

20 March 2017

SAS and a number of other airlines have once again been fined by the European Commission for their participation in the Air Cargo cartel. In 2015, the European General Court annulled the Commission's decision due to a procedural error. The Commission has now remedied the error and changed its decision.

Horten advises Burmeister & Wain Scandinavian Contractor A/S on its acquisition of Burmeister & Wain Energy A/S in bankruptcy

8 February 2017

With effect from 6 January 2017, Burmeister & Wain Energy A/S (BWE) was acquired by Burmeister & Wain Scandinavian Contractor A/S (BWSC), which, despite the common name, has had different owners since the 90'ies.

Are you allowed as a governm¬ent official to say that the municipal chief executive's "core competence may not be the truth"?

30 January 2017

According to the Ombudsman, it was in accordance with the rules of government employees' freedom of speech when a municipal employee was given a warning for writing on his Facebook profile that the municipal chief executive was "a person whose core competence may not be the truth".

The Danish state is liable in damages for lack of replacement holiday

23 January 2017

The Supreme Court has ruled that the Danish state is liable in damages for not having made the Holiday Act consistent with the Working Time Directive fast enough in relation to sickness during holiday. However, the Supreme Court ruled in favour of the Danish state as the Supreme Court found that the state was not liable in damages at the time of the employee's sickness during the summer holiday 2010.

Global Leaders in Law appoints Horten as exclusive partner for Denmark

10 January 2017

Global Leaders in Law, the leading global general counsel forum based in London, and Horten has announced partnership. Appointed as a global bronze partner, Horten will sponsor the activities of Global Leaders in Law in 2017.

Competition law - Adoption of new rules on claims for damages

1 December 2016

The directive concerning damages to customers (and others) suffering a loss due to violation of the competition rules came into force in December 2014 (Directive 2014/104/EU). The directive is now being implemented into Danish law.

Trainee could be dismissed before training period started

8 September 2016

In a leading Supreme Court case, the court found that a company could terminate a training agreement before it had begun.

The ombudsman: Dismissal of upper secondary school teacher was contrary to government employees' freedom of speech

5 September 2016

The ombudsman found that it was "strongly criticisable" that Campus Bornholm had dismissed a teacher for having criticised the employer.

Compensation for violation of the principle of equal treatment of the Temp Act

5 September 2016

For the first time, the Supreme Court has ruled on a violation of the principle of equality of the Temp Act.

Compensation for wrongful publication of conviction

5 July 2016

Recently, the Eastern High Court ruled in a case where the housing association AAB had published information on a former voluntary cashier's criminal offenceson the Internet contrary to the Personal Data Act.

New act on e-cigarettes: Obligation to prepare a written policy concerning smoking at the work place

14 June 2016

A new act on e-cigarettes has come into force. The act implies that employers must prepare a written policy stipulating whether and, if so, where e-cigarettes are allowed.

Work permit in Denmark - many schemes will change

9 June 2016

From 10 June 2016, it is no longer possible to apply for a residence permit in Denmark through the Green Card scheme, and the minimum yearly salary required to obtain residence and work permit under the Pay Limit Scheme is abolished.

Legal to prohibit headscarves at the work place? A clarification is on its way from the European Court of Justice

8 June 2016

Recently, the Advocate-General proposed a decision in a case concerning a prohibition against religious symbols at the work place. The proposal may influence ECJ case law in a new direction.

New ratings from the international reference book Legal 500

4 May 2016

There are several good news for Horten in the new rankings, among these to new Tier 1-ratings in Media & entertainment and Telecoms.

Gift policy

3 May 2016

With a conviction of bribery, your company risks having to wave goodbye to public orders due to the rules of the Procurement Act.

The prohibition against discrimination overtrumps due process of law

3 May 2016

In a recent preliminary ruling, the European Court of Justice established that private persons and companies are subject to a prohibition against discrimination due to age based on both a principle of EU law as well as an obligation under a directive

The supreme court: Uncertain whether prohibition against indirect discrimination covers parents with disabled children

29 April 2016

The dismissal of a child-minder on leave to take care of her son suffering from Asperger syndrome was not contrary to the Anti-Discrimination Act. It is still uncertain whether a person covered by the protection criteria is protected against indirect discrimination.

Practical advice concerning the European Single Procurement Document (ESPD)

28 April 2016

After the coming into force of the Procurement Act, the ESPD has given rise to special challenges both for the applicants/tenderers and the contracting entities.

The Western High Court ruled in favour of a former executive officer in text message case

27 April 2016

The Western High Court ruled in favour of a former executive officer, who had violated the provisions on mail secrecy by having read a crane driver's text messages on his work cell phone.

Time barring of industrial injury claims

26 April 2016

The Supreme Court has ruled that claims for compensation for permanent injury under the Act on Industrial Injuries are subject to the general 5-year limitation period - even if the industrial injury did not happen after 1 January 2004.

Dismissal of disabled employee was not contrary to the anti-dicrimination act

14 April 2016

The Supreme Court has ruled in a case as to whether an employee's sympathetic reflex dystrophy was long-term and therefore constituted a disablement within the meaning of the Anti-Discrimination Act.

Renunciation of collective agreement was lawful

11 April 2016

Recently, the Industrial Court accepted that Cimber renounced SAS' collective agreement for cabin crew in connection with transfer of aircraft and staff from SAS.

International women lawyers discuss the future of the legal profession

6 April 2016

Horten participates when 150 lawyers from all over the world meet in Berlin on 7-8 April under the headline "Law in a changing world – how women can contribute to innovation of the legal profession".

Ruling in the Kaltoft case: Employee's obesity was not considered a disablement

31 March 2016

Recently, the Court of Kolding ruled in a case whether an employee's severe obesity was a disablement. The court found that the employee's problems did not constitute a disablement within the meaning of the Anti-Discrimination Act.

Summary dismissal for purchase of mobile tickets for the employer's account

17 March 2016

The Supreme Court has ruled in a case where an employee purchased train tickets for private purposes from his work phone. According to the Supreme Court, the summary dismissal was justified.

Compensation for loss of capacity for work to person close to retirement age

15 March 2016

The Supreme Court has ruled that it is without any importance to the awarding of compensation for loss of capacity for work that the person is may receive state pension within a very short time.

Dispute concerning cost-free loan guarantees to two district heating companies may be brought before the Supreme Court

23 February 2016

State subsidies: A dispute concerning cost-free loan guarantees to two district heating companies may be brought before the Supreme Court, but the municipal initiatives should continue.

Tax and state aid: where are we going?

10 February 2016

Since 2013, the Commission has investigated the member states' tax rulings to establish whether the state aid rules are violated through selective tax advantages.

Attorney was not covered by the salaried employess act

5 February 2016

The Eastern High Court surprisingly concluded that an attorney and partner at a law firm did not enjoy employee status and was therefore not covered by the Salaried Employees Act, the Holiday Act or the Contract of Employment Act.

Political agreement on new EU-US privacy shield agreement

4 February 2016

A new political agreement between the European Court of Justice and the US is finalized, after the European Court of Justice set aside the the Safe Harbor scheme last year.

Smoking police/policy - what is the employer allowed to do?

3 February 2016

Two new rulings clarify the scope of the employer's right to lay down smoking policies and impose sanctions in connection with violation of these policies.

Loan guarantees to two district heating companies were illegal and thereby invalid

26 January 2016

This was established on 25 January 2016 when the Western High Court ruled on a dispute between the Municipality of Sønderborg and two local district heating companies. The ruling means that the municipality is obligated to charge a guarantee commission which constitutes more than DKK 70 million in the guarantee period.

Update Employment Law

3 September 2014

No age discrimination

19 December 2011