Reference: Application No. 62617/00
Court: European Court of Human Rights
Judge: Casadevall (President), Bratza, Bonello, Maruste, Pavlovschi, Garlicki and Borrego Borrego JJ
Date of judgment: 3 Apr 2007
Summary: Right to respect for private life and correspondence - Article 8, European Convention on Human Rights - Scope of "private life" and "correspondence" - Whether interference "in accordance with the law" - Monitoring of telephone calls, email and internet usage at work - No policy in place - No statutory provision for such monitoring
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For several months during C’s employment at a college of further education, her telephone, e-mail and internet usage were subjected to monitoring at the Deputy Principal’s instigation. This monitoring took place in order to ascertain whether the applicant was making excessive use of the college facilities for personal purposes. The monitoring of telephone usage consisted of analysis of the college telephone bills showing telephone numbers called, the dates and times of the calls and their length and cost. The monitoring of her internet usage took the form of analysing the web sites visited, the times and dates of the visits to the web sites and their duration. The monitoring of e-mails took the form of analysis of e-mail addresses and dates and times at which e-mails were sent. There was no policy in force at the College at the time regarding monitoring of telephone, e-mail or internet use by employees.
C complained of a violation of her Article 8 rights.
(1) Whether the college’s monitoring activities amounted to an interference with C’s rights under Article 8;
(2) If so, whether that interference was “in accordance with the law” as required by Article 8(2).
Finding a violation of Art 8:
(1) Telephone calls, e-mails and personal internet usage on business premises are prima facie “private life” and “correspondence” for the purposes of Art 8. As C had not been warned of the monitoring she had a reasonable expectation of privacy. The collection and storage of personal information relating to C’s telephone calls, as well as to her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Art 8.
(2) The college’s statutory powers did not authorize it to do “anything necessary or expedient” for the purpose of providing education. No provisions existed, either in general domestic law or in the governing instruments of the college, regulating the circumstances in which employers could monitor the use of telephone, e-mail and the internet by employees. Accordingly the interference was not “in accordance with the law”.
Some may be surprised to discover the Strasbourg Court views telephone calls, emails, and particularly personal email use at work as being included within “private life” for the purposes of Article 8, but it is important to note that had C been made aware of a (lawful) policy of monitoring such activities the decision in this case would likely have been different. Further, the Telecommunications (Lawful Business Practice) Regulations 2000 (adopted under the Regulation of Investigatory Powers Act 2000), which provide for such activities, were not in force at the time of the acts complained of.