back to article Give staff privacy at work, Euro human rights court tells bosses

Companies operating in Europe must balance workplace surveillance with employees' privacy rights, the European Court of Human Rights has ruled. The decision reverses a 2016 ruling by a lower chamber of the court that found no privacy issue with workplace communication monitoring. It marks the first time Europe's top human …

The echr is not an eu institution! This ruling applies to any member of the convention, not just the eu, and we will remain part of that convention when we leave the eu.

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Which is exactly why it is higher on May priority list

That is exactly why it is even higher on May's priority list than Eu.

Her original (even more idiotic than now) position during the referendum campaign was "I grudgingly support us being in the Eu, but the Human Rights Convention and ECHR must go". Remember?

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Re: Which is exactly why it is higher on May priority list

There's a large mass of opinion that seems to think that human rights law prevents the state protecting it's citizens in some way. This view is widespread amongst Police officers and the military.

Nobody seems able to explain why the ECHR fails to prevent the Gendarmere, the Guardia or the Carabinieri operating in robust ways that the UK Police only dream of. I bet the Romanian Police aren't soft and cuddly either (my Romanian friends advise me to cross the road to avoid the Police, some habits die hard).

Theresa May feeds off and fuels this paranoia. It's hard to see how she, as an intelligent woman, can be acting anything other than fraudulently.

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""I grudgingly support us being in the Eu, but the Human Rights Convention and ECHR must go"

You do wonder if May loosened up a bit over a few drinks what her Gollum impersonation would be like.

"We wants it. We needs it. We must have hard Brexit."

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Re: Which is exactly why it is higher on May priority list

Most people don't have a problem with human rights law. Nobody has ever argued against the Human rights that have been floating around in the UK since the Magna Carta and the (1689 english) bill of rights etc. Most people are pissed off with an incompetent implementation of the 1998 Human Rights act, and to be fair I agree that it was incompetently implemented into UK law.

In the UK all of our law is based on a restrictive basis. Your inherently free to do anything, with the exception of very tightly defined laws which create things that you are forbidden to do.

Most EU countries invanded by the Emperor Napoleon use his system of law which starts off on the basis that the individual has no rights and laws create rights for the individual. In this sort of system, the human rights act creating such rights as "you have a right to a family life" was designed to ensure that future dictators on the Europeon continent would be constrained at least somewhat by their legal systems and grant to europeon citizens the rights enjoyed by Englishmen for most of the last millenia. It was in fact written by a committee of British civil servants precisely to this end.

However, by adding blocks of continental type law into the UK law books it ends up clashing. For instance, prisoners coming out and saying that being in prison is a violation of their right to a family life does quite understandably grate with the majority of the population, especially when they murdered people (violating their "right to life") to end up in prison. This is the much maligned part of the act:-

Article 8 Right to respect for private and family life

1Everyone has the right to respect for his private and family life, his home and his correspondence.

2There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

That's the much maligned "right to a family life" as found on the UK's law books. It's written absurdly poorly and is far to vague. It should have been written along the lines that:-

"There shall be no monitoring, recording, or interference with an individual's privacy in a public or private space without their consent, and there shall be no entry to property to search an individuals property without a court order or the individuals consent"

Doing this in a specific manner would have frankly solved the problems of the rather negative publicity when people jailed for murder or terrorism cry "you can't do that, it's against my human rights!" which tends to inflame public opinion against the act as after a number of well publicised uses of the act in this manner it's hardly surprising that people think it's just a charter for criminals which has no positive influence for the general public.

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Megaphone

Re: Which is exactly why it is higher on May priority list

"There shall be no monitoring, recording, or interference with an individual's privacy in a public or private space without their consent"

I dispute that. You have no right to privacy in a public space - I can see you and you can see me. Want privacy? Go home.

Imagine not being able to photograph yourself, your friends, or landmarks in public because everyone around you claims they have a public privacy right. Madness

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Big Brother

Re: Which is exactly why it is higher on May priority list

"There shall be no monitoring, recording, or interference with an individual's privacy in a public or private space without their consent"

I personally wouldn't have a problem with some kind of warrant/court order system to tap communications, providing it's more targeted than "we're surveilling you because you get the same bus as someone who's mum's ex-boyfriend's kid once messaged an ISIS recruiter".

Also, "for the protection of health or morals", health I can understand (even if it's a bit iffy, can the police come into my house to tell me to eat less crisps and do some exercise?), but morals? Who's morals?

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Re: Which is exactly why it is higher on May priority list

"Most EU countries invanded by the Emperor Napoleon use his system of law which starts off on the basis that the individual has no rights and laws create rights for the individual."

This myth keeps cropping up. I'm not a lawyer but I have read some books about Dutch law which is based on the Napoleonic code. I think your statement is quite incorrect - can you provide a source for it?

As far as I'm aware most continental European countries also have a system where you're free to do anything, as long as it's not specifically prohibited (i.e. the same as the UK system as you describe it). Indeed, this is one of the key principles of a liberal democracy.

"In the UK all of our law is based on a restrictive basis. Your inherently free to do anything, with the exception of very tightly defined laws which create things that you are forbidden to do."

Hmm, I think if it's up to May and some of her colleagues (including those on the opposite side of the House) "very tightly defined" means "anything we or the coppers/TLAs don't like".

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Re: Which is exactly why it is higher on May priority list

Napoleon's way of law is far different from what is used today. It was an empire not a democracy. Where in the end, no matter how you sliced it the government had no accountability to the people. This also meant the social classes had laws applied differently.

Today, most countries in the west (yes, this includes Europe) use constitutional law where the rights and freedoms of individuals are laid out, as well as the role and responsibilities of government.

All other laws made must past a constitutional test... to ensure they do not go against anything laid out in the constitution. This is a HUGE difference from Napoleon.

This doesn't mean... you can do something as long as there isn't a law forbidding it. In nearly any case where possible damage is done against another, it will bump up against something within the constitution. Where there is questions and arguments... there are courts and juries to decide.

Right now... EU has legal arguments all over since each country has a constitution (which precedes the idea of the EU; so it's not written with it in mind -- and the amendments with EU in mind for the most part... are hideous) and now there is a EU constitution of sorts (again hideous to get all on board). Because of this, in all reality, each country has lost a lot of identity when it comes to the courts. Because as you have seen... a group of legal scholars in Belgium or France decides what's best without understanding an individual's culture, or what the people really want in a particular area. It's also costly for people to work within it.

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Re: Which is exactly why it is higher on May priority list

>For instance, prisoners coming out and saying that being in prison is a violation of their right to a family life

Which has no relevance to the ECHR. This example is worthy of the Daily Mail.

(And, frankly, I think El Reg has misinterpreted this ruling. It's not about a 'right' to use your employers mail system for personal use. It's about the 'right' of an employer to snoop on it - without first laying out the terms of use.)

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Re: Which is exactly why it is higher on May priority list

"'that being in prison is a violation of their right to a family life'

Which has no relevance to the ECHR. This example is worthy of the Daily Mail."

Exactly. Every other country is subject to the ECHR and nobody else has this problem and no other country's press and politician's whip up this sort of hysteria. It's almost as if the gutter press is concerned about being unable to invade privacy whenever they want. If fault lies anywhere it's with the English judiciary for it's occasionally bizarre rulings.

" I think El Reg has misinterpreted this ruling."

The Reg article is awful. But it does link to the ruling, which is an excellent piece. Reg's article is, thankfully, better than the Reuters piece most new outlets copied.

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(Written by Reg staff) Silver badge

Re: Graham Dawson

Hiya - yup, sorry. Wrote this from the US and didn't appreciate the subtle differences. Don't forget to email corrections@theregister.co.uk if you spot any problems.

C.

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Re: Which is exactly why it is higher on May priority list

It's the 'intelligent woman' bit I find odd. I don't think she can be, all she seems to do is act moronically. I cannot understand how she got into Oxford, I really can't.

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Re: Which is exactly why it is higher on May priority list

Which has no relevance to the ECHR. This example is worthy of the Daily Mail."

Exactly. Every other country is subject to the ECHR and nobody else has this problem and no other country's press and politician's whip up this sort of hysteria.

Map of the legal systems of the world:-

https://en.wikipedia.org/wiki/File:Map_of_the_Legal_systems_of_the_world_(en).png

The blue shaded areas are using the Code Civil system, red us using Common Law derived systems. How many other Common Law systems are there in the EU? Penny dropped yet as to why we are the only country having these particular problems?

If fault lies anywhere it's with the English judiciary for it's occasionally bizarre rulings.

Please. Don't bash the judges for doing their work unless your actually a Daily Mail devotee. Judges are employed to strictly interpret what has been written in law and bizarre law results in bizare judgements. That's not the fault of the judge.

Judges should not be asked or expected to ignore law on the books. If laws don't make sense, they shouldn't be on the law books!

The blame is with implementing law to the UK's statue books that is both nonsensical and contrary to our system of drafting law. It could have been (and could still be) resolved by simply drafting the laws correctly for our law books.

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Court is right

There is no need to be "el reg style flippant".

It is a fundamental legal principle: "YOU CANNOT SIGN OFF AN UNALIENABLE RIGHT". Contract clause cannot override any of the so called fundamental rights. Same as in UK law - an illegal clause in a contract usually nullifies the whole contract (unfair contract terms act of 1977 and several truckloads of precedent to support it).

The amount of time it took for something that simple to be put right is a testament to the amount of pressure lower courts were put under.

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Re: Court is right

With all due respect, you missed that the contractual situation was not only unclear, it was also not clarified during proceedings. This is what led to the default position of protecting privacy.

If a company makes communication monitoring mandatory (and some even have legal obligations to do so, like the financial profession) and notifies you in writing (and gets you to sign for that, of course), they can monitor all they want. As the company in question could not demonstrate they had warned the employee, his right to privacy persisted.

I must admit I'm slightly puzzled about this one. Making staff accept potential monitoring has been requirement no 1 for YEARS, even under older privacy regimes, because otherwise employees have indeed a right to privacy, even on corporate resources - and rightly so. That it took several rounds of court to have this re-established is unusual.

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Re: Court is right

With all due respect, you missed

By that logic if the contract says you have a CCTV camera installed in the toilet up your butt, you are obliged to accept that and have absolutely no entitlement to object.

I will repeat - Contract clauses DO NOT OVERRIDE LAW. If the LAW (and in this case the EUHR Convention as implemented in the law of all member states) says you have a right to privacy, this is is supreme to any contract clause. It would and should have been the same even if the company warned him.

Just to be clear - what the court has decided (and what El Reg has omitted from their coverage) is that the company is entitled to monitor on corporate resources. It however MUST respect article 8.

This is the decision, and it is quite clearly valid in both Eu and UK law and fair too.

So for example, based on monitoring, it may take an issue with how much time you are spending on your family affairs, but it cannot take an issue with the content and the fact that you may have to do so at work in some cases - as in this case.

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Re: Court is right

An organisation that has its employees sign a document permitting monitoring could still be in breach of the law, since the employee / employer relationship is not usually considerate to be an equal one: There is plenty of employment case law that has emphasised that point, and having employees sign documents like this could be considered as coercion and abuse of power.

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Re: Court is right

> If the contract says you have a CCTV camera installed in the toilet up your butt, you are obliged to accept that and have absolutely no entitlement to object.

How much was that job offering? Just asking.

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Re: Court is right

>YOU CANNOT SIGN OFF AN UNALIENABLE RIGHT

There is no such thing as an unalienable right (or even an inalienable right).

Rights are alienated every day.

It's simply a right, or it isn't (and, even then, it's open to interpretation).

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Mushroom

Re: Court is right

Someone ought to brief the lawyers of shithole companies such as Sports Direct where even toilet breaks are timed and deducted from your pay.

The sooner those companies are sent to the wall the better IMHO.

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Any chance

You could drop the boringly tedious and irrelevant references to Brexit?

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Re: Any chance

Where's the fun in that? :)

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Happy

Re: Any chance

Typical remoaner!!!

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Re: Any chance

Any chance you could drop Brexit?

(downvotes ahoy! ;) )

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Coat

So roughly.

Employer forces employee to set up IM account.

Employee uses it for personal use, not realizing account is being monitored.

Employer fires employee for either time spent or stuff they saw on the account.

I'm not sure which party seems the dumber, bigger tool here.

I'd say the employer, for forcing the employee to get the account, failing to make it very clear that it was for work use only and throwing a hissy fit when it wasn't.

I wonder how many people who hear the word "Romania" are thinking "An accursed land... terrorized by all sorts of nightmarish creatures. Lorded over by a certain Count Dracula."

So not much changed there then, eh?

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Anonymous Coward

I was once in a local government job where the PHBs demanded we use social media to communicate with the masses, and simultaneously made it a disciplinary offence to use social media with office computers and firewalled the sites.

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WTF?

Right to privacy absolute? Bollocks

I was let go from my last job (a small company in the private sector) for deleting a private twitter account rather than give my manager my login details. Said account was only visible to friends and very rarely mentioned anything work related.

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Re: Right to privacy absolute? Bollocks

Seems to me like you have a case for wrongful dismissal and bootloads of compensation.

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Re: Right to privacy absolute? Bollocks

It would have cost me too much to bring it to a tribunal and i got another job within a month thankfully.

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Happy

Who knew so many Romanians read El Reg?

Judging by the down votes.

My post had too points.

1) That for a lot of Americans people all they've heard about Romania is indeed from watching Van Helsing. I was gently poking fun at this. IRL Romania's recovering after decades of Communist rule, has relatively low living costs, under appreciated scenery and a growing economy.

But you already know this.

TBH I'd quite like to visit the place, and I don't have a repeating crossbow. :-}

2) That kind of "Double jeopardy" employment contract seems like something out of 19th Russia, where IIRC servants could be banished to Siberia, but had to pay their own train fare to get there.

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If the box is locked does it contain both a chicken and an egg?

Or, to put it another way, how does my monitoring system know which emails/phonecalls/IM's/documents it can't monitor?

Without, you know, monitoring them?

Or, to put it anothernother way 'This site uses cookies, if you don't agree to the use of cookies then tough luck sukka!'

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It's all academic anyway

Sooner or later companies will see the light and turn on the dark. Buildings will be shielded against all EM stuff, so your phone won't work at work. Execs might get a special internal phone network just for them. Wired networks will be walled and partitioned. And monitored.

Did anybody think that being able to send data anywhere in the world from your desk was a good idea for a company interested in preserving its IP? The only reason it can still be done is that people are basically dumb drones who don't get it. If the people at the top were tech savvy they would have slammed the door early on instead of having to fight a different brush fire every day as they do now. I suspect that the security companies make more money selling temporary fixes than they would from sealing the leaks for good, but that too shall pass.

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Re: It's all academic anyway

Not sure about the law in Europe; but, in the US it is illegal for private entities to block otherwise legal electronic transmissions such as cell phones. Theaters wanted to do so to prevent phones from going off during performances; but, were told in no uncertain terms they could not. Blocking transmissions by technical means and having strict policies on use, etc are two very different things. At major gold tournaments here in the US they require you to go through a metal detector and do not allow cell phones on the course regardless of how much you paid for that ticket.

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<foam>

Courts....Traitors...Enemies of the people....

</foam>

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