In the aforementioned case, Mr Bărbulescu was asked by his employer to create a Yahoo Messenger account for the purpose of responding to clients’ enquiries. The employer monitored Mr Bărbulescu’s Yahoo Messenger communication during approximately a week and discovered that his employee had used the company’s Internet connectivity for personal purposes. Consequently, the employer terminated his employee’s employment for breach of company’s internal regulations which prohibited use of company resources for personal purposes. When making the decision, the ECHR had to examine if the employee had a reasonable expectation of privacy when using this Yahoo Messenger account registered at his employer’s request for private communication. As the main object of proceedings before Romanian courts was the employee’s dismissal, while no particular weight had been attached to the actual content of Mr Bărbulescu’s communications, and as these proceedings showed that the employer had accessed his employee’s Yahoo Messenger account in a belief that it had contained work-related messages, the ECHR did not find it unreasonable for an employer to wish to verify whether his employees are duly performing their work-related tasks during working hours.
In the Czech Republic, the Labour Code, respectively Sec 316 Para 1 LC explicitly prohibits that employees use the employer’s means of production and other means necessary for performance of their work, including computers and telecommunications, for their personal needs (this is a general rule), unless their employer’s give consent to such private use. Therefore, any use of Internet at work by employees for private purposes without the employer’s consent remains unauthorized. The LC does not prescribe a written form for such consent on the part of the employer, it is however advisable, as it may prevent misunderstandings regarding the scope of an eventual employer’s consent with such use, that a written form is always prepared; if employers wish to allow use of company’s resources for employee’s private purposes, the most practical way is to stipulate the rules in some form of internal regulations / guidelines. Employers are also authorized, by the same law, to check compliance with the aforementioned prohibition in an appropriate way (Sec 316 Para 1, second sentence, LC). This employer’s authorization has already been subject to review by domestic courts in the Czech Republic.
The scope of the employees’ privacy protection within their employment is determined (limited) by the fact that employees perform, in person, dependent work that is carried out within a relationship defined by the employer’s superiority and employees’ subordination, in the employer’s name and according to employer’s instructions (Sec 2 Para 1 LC). It is also the employees’ legal obligation, among other, to (1) make full use of their working hours (working time) and capital equipment (means of production) for performance of the work assigned to them (Sec 301 Lit. b) LC) and to (2) properly use (manage) the resources (means) entrusted to them by the employer, to secure and protect the employer’s property against damage, loss, destruction and misuse, and not to act contrary to legitimate interests of the employer (Sec 301 letter d) LC).
This employee’s rights are further clarified in Sec 316 Para 1 LC, which explicitly empowers the employer to exercise appropriate controls in order to check whether employees comply with the ban to use employer’s means of production and other means necessary for performance of work (cp. NS ČR 21 Cdo 747/2013). In connection with employers’ authorization to control employees, it has been particularly found that Sec 316 Para 1 LC is a relatively indeterminate norm which allows the courts to review each particular case and determine in every single case whether the employer had exercised control in an appropriate way. The courts will particularly take into account whether the employer exercised a continuous or a subsequent control, for how long this control lasted, which was the scope of the control, whether and to what extent the control limited the employee in his activities and whether and to which extent it actually violated employee’s right to privacy (cp. NS ČR 21 Cdo 1771/2011).
In addition to regulation contained in Sec 316 Para 1 LC, the employer may not encroach, without a serious cause triggered by the nature of the employer’s activity, upon employees’ privacy at workplace and in common premises by open or concealed surveillance (monitoring) of employees, interception (including recording) of their telephone calls, checking their electronic mail or postal consignments addressed to employees (cp. Sec 316 Para 2 LC). Contrary to situations addressed by regulation in Sec 316 Para 1 LC, the regulation in Sec 316 Para 2 LC limits employers only in very intensive, systematic and methodical surveillance (monitoring) of employees; in cases where such a ‘serious cause’ inherent in the nature of employer’s activity exists and the employer decides to monitor employees systematically, the employer will also be obliged to directly inform employees of the actual scope and methods of surveillance (monitoring) and its implementation. The employers must be able to demonstrate that employees were informed and therefore we would always advise that it is done in writing. The term of “serious cause triggered by the nature of employer’s activity” may be also considered as a relatively indeterminate norm, enabling the courts to find an appropriate interpretation for every individual case. For the sake of completeness, we should also mention that any issues related to data processing are further regulated by Act No. 101/2000 Coll., as amended, on Data Protection, and employees need to observe these in addition to Labour Code regulation.
The Bărbulescu judgement does not contradict the Czech Supreme Court’s case law nor a broader Czech Labour legislation, as the ECHR itself did not find it unreasonable that employers wish to verify whether employees use working hours to perform their work tasks. On the other hand, a fair balance between the employees’ and employers’ interests always needs to be established; in the context of controls / checks of employees’ e-mail or other Internet use, Sec 316 Para 1 LC enables (and binds) the courts to review every particular case from all different perspectives, so that employer’s activities aren’t inappropriate and do not limit employees and their rights in an unreasonable way.
Michaela Hájková