On January 12, 1, the European Court of Human Rights (hereinafter referred to as the ECtHR) issued a landmark decision in the matter of the monitoring of personal electronic communications of employees by the employer during working hours - Decision in case No. 2016/61496 Bărbulescu v. Romania.

ESPL came to the conclusion that the monitoring of employees in the form of monitoring the communication of a specific employee during working hours on the computer he used for work does not contradict Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "Convention"), i.e. that it does not interfere with the right to respect for private and family life.

This decision results in the admission of the possibility for employers to monitor the movement of employees on the Internet and to monitor their private electronic correspondence during working hours carried out via e-mail, Facebook, Messenger, etc. If the employer were to find out in this way that the employee is violating his work duties by taking care of private matters during working hours, he could be subject to labor law sanctions, and in serious cases, termination of employment ratio.

In this particular case, the employer prohibited employees from using the employer's Internet connection for private purposes during working hours, and at the same time informed the employee that he would monitor compliance with this obligation. In the ECtHR's opinion, it is not unreasonable if the employer wants to verify in this way whether the employee uses working time exclusively to fulfill work duties and whether he uses the employer's production and work resources (including computer technology) in the way that the employer has set for him.

At first glance, Czech legislation also allows this method of checking employees, see § 316, paragraph 1 of Act No. 262/2006 Coll., Labor Code: "Employees may not use the employer's production and work resources, including computer technology or its telecommunications equipment. According to the first sentence, the employer is entitled to control compliance with the prohibition in a reasonable manner." However, a reasonable control method is a very broad concept, to which the legislator gives a wide scope for considering whether the control method in that particular case is still within the limits of the law or is already an unreasonable interference with privacy employees. In the vast majority of cases, Czech judicial (as well as control) practice is inclined towards the fact that checking the content of employees' private messages is an unreasonable intrusion into a person's privacy. According to one of the opinions of the Office for the Protection of Personal Data (opinion no. 2/2009, updated as of 1/1/2014, available at www.uoou.cz) "the employer is not entitled to monitor, monitor and process the content of his employees' correspondence. The employer may only monitor the number of e-mails received and sent by his employees, including the header, i.e. to whom they are writing and from whom receive." The opinion continues: "The employer may open and read an employee's private e-mail based on the authorizations given to him by the new Labor Code only exceptionally, in order to protect his rights, especially if it is clear that it is a work e-mail, i.e. . if this conclusion can be made on the basis of the data given in the header, and if it is likely that due to objective reasons, such as the employee's long-term illness, its settlement by the employee could be so late that the employer could suffer damage to its rights. The employer thus effectively uses his right to protect property according to the new Labor Code. When ordering leave, the employer should take such representation measures in advance so that the employee's privacy is not damaged."

If the employer wanted to use the records obtained by monitoring private e-mail as evidence in an employment law dispute with the employee and through them to prove to the employee that he did not properly fulfill his work duties, this evidence should be inadmissible in the context of the stated principle of protecting the privacy of the employee and the court should not consider it take a look A different position was taken by the Supreme Court of the Czech Republic only in case no. no. 21 Cdo 1771/2011 – Kasal's saw, when he justified the admissibility of recording such evidence by stating that: "the aim of the control carried out by the employer was not to ascertain the content of e-mail messages, the content of SMS or MMS, possibly sent or received by the employee, but only to find out whether the employee respects (and if not, to what extent) the prohibition to use the employer's computer technology, including its telecommunications equipment, for personal use, resulting from the law, taking into account the prohibition not to use websites with dubious or sensitive content or online sites news, watching TV via the Internet or listening to the radio via the Internet, which can excessively load the computer network and which are not related to the performance of the agreed work (resulting from the Work Regulations). It is therefore clear that the control carried out was only aimed at protecting the employer's property."

Due to its generality and breadth of scope, the interpretation contained in the aforementioned decision of the ECtHR can therefore be considered to be in conflict with the principle of the prohibition of violating the privacy of employees at the workplace, which is enshrined in the Czech legal system in the provision of § 316 paragraph 2 of Act 262/2006 Coll. Labor Code: "The employer may not, without a serious reason based on the special nature of the employer's activity, violate the employee's privacy at the workplace and in the employer's common areas by subjecting the employee to open or covert surveillance, wiretapping and recording of his telephone calls, control of electronic mail or control of letters addressed to employees." This means that control mechanisms can only be introduced in an exceptional case, when there is a serious reason based on the special nature of the employer's activity. Apart from these rare cases, the employer may not carry out this inspection.

ECtHR judgments are binding only on the parties to the dispute. However, through them, the court also interprets the Convention, thereby giving guidance or the correct direction of interpretation to the courts of the countries that have signed the Convention. Ratified international treaties are part of our legal order and have application priority over the law. This priority is enshrined directly in the Constitution. It follows that the decision of the ECtHR in question (the legal opinion contained in it) is in a way binding also for analogous situations in other states, i.e. also in the Czech Republic. However, this decision is not yet final and can be reviewed by the Grand Chamber of the ECtHR at the request of either party.

It will be interesting to observe the application practice of general courts when dealing with the contradiction between the interpretation up to now held in the Czech Republic and the interpretation contained in the cited ECtHR decision.

The team of the Vych & Partners, s.r.o. law office