TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): It is clear that the public expects a landmark decision to be rendered by the Grand Chamber in this respect, and I conclude by saying, on the other hand, we maintain the request for just satisfaction for Mr. Bolescu.
AP2 (Applicant): And we will answer any questions.
Guido Raimondi (JudgeP): Thank you very much, Mr. Juverdeanu.
Guido Raimondi (JudgeP): And now I call Mrs. Brumar, you have the floor, please, Madam.
GR1 (Government): Mr. President, honorable judges, it
GR1 (Government): is an honor and a privilege for me and my colleague to appear before this distinguished court in addressing such a sensitive issue as the one raised by the case at hand.
GR1 (Government): After providing the essential factual elements for a clear image of the unfolding of the events as they occurred at the material time, I shall address the applicability of Article 8 of the Convention and present an overview of the most relevant aspects regarding the scope of the conventional text.
GR1 (Government): My colleague will address the issue of states' responsibility and the manner in which the national authorities acted with observance of their incumbent obligations enshrined in Article 8 of the Convention.
GR1 (Government): before presenting the essential factual elements of the case before you today, please allow me to sketch the applicable normative framework for a better understanding of the events and of the domestic court's reaction to the applicant's judicial steps.
GR1 (Government): The national legal system guarantees the right for respect of the inviolability of correspondence at the constitutional level within the same standards as the conventional ones.
GR1 (Government): That is to say, a conditional right whose exercise could be limited.
GR1 (Government): At the same time, the legislation in force in the labor field, while recognizing the employer's right to control the employee's fulfillment of professional tasks, provided that it was under the obligation to respect the employee's personal data.
GR1 (Government): Moreover, the normative framework opened for any employee who considered that her rights were disrespected within the labor relationship the way to bring a claim before the labor court.
GR1 (Government): Special regulation regarding the protection of personal data was in place, offering the person who considered her data had been illegally retained or misused the possibility to either bring her case before the administrative body competent to supervise the respect in the collection, retention, and use of personal data, and or seek damages before the civil courts.
GR1 (Government): On the criminal level, the illegal opening of anyone's correspondent is sanctioned with imprisonment.
GR1 (Government): At the material time of fact, the criminal action was set in motion at the prior complaint of the person concerned.
GR1 (Government): Our written pleadings before the grand chamber contained the detailed presentation of the relevant legislative regulations in place, as well as the highlight of the domestic practice and case law, indicating that electronic correspondence, as well as a classical one, benefits from the same standards of protection and that, in their analysis, the national bodies perform an extensive exam of the legality of any interference with the exercise of the right to the inviolability of one's correspondence.
GR1 (Government): It is against this background that the fact of the case needs to be reminded.
GR1 (Government): The applicant was dismissed in August 2007 after being employed for three years within a private company following a disciplinary action for infringement of his employer's internal regulations, namely the use of the office's facilities, computer and internet connection, in his personal interest.
GR1 (Government): The applicant, including before the European Court, claimed that the employer's right of control was exercised in an unpredictable manner and that he had not been notified about the possibility of monitoring by his employer of his correspondence.
GR1 (Government): It is worth reminding in this context that on 20 December 2006, that is eight months before the events that led to Mr. Bobulescu's dismissal, he was informed of
GR1 (Government): and he had signed the internal regulations of the company.
GR1 (Government): The said document contained the policy of computers and internet use.
GR1 (Government): It was written in clear terms, computers and internet use was permitted only for work-related activities.
GR1 (Government): The failure to observe this obligation was regulated as a severe infringement capable of leading to a dismissal decision.
GR1 (Government): At the beginning of July 2007, the applicant and his 14 colleagues within the Bucharest office of the firm signed for acknowledgement a company-wide notice which highlighted that another employee had been let go on disciplinary grounds, specifically due to personal use of the company's internet connection and phones.
GR1 (Government): The notice also stated that the employer verified and monitored the employee's activity, specifically mentioning that they should not use the internet, phones, or faxes for issues unrelated to work.
GR1 (Government): It is of utmost importance to highlight that the notice signed by the applicant for acknowledgement is a document which previously lacked from the probative material.
GR1 (Government): As such, the chamber had no choice but to hold the issue of whether the applicant had been explicitly warned or not of the monitoring as being a disputed one.
GR1 (Government): Indeed, the applicant tried to take full advantage of the fact that the government had not sent a copy of the said document.
GR1 (Government): And under these circumstances, he submitted to the chamber a copy which did not bear any signatures.
GR1 (Government): Mr. President, two preliminary conclusions
GR1 (Government): need to be drawn from the aforementioned aspects.
GR1 (Government): The first is that the absolute ban to use the internet in personal interest and the corresponding possibility to be fired for noncompliance were both well-known to Mr. Bobulescu.
GR1 (Government): The second conclusion is the fact that at this time before the grand chamber, it is certain that the explicit warning of monitoring was delivered by the management and also acknowledged by Mr. Bobulescu.
GR1 (Government): Mr. Bobulescu had previously set up
GR1 (Government): an account at the request of his employer with the purpose to provide technical support to the company's clients.
GR1 (Government): From the comparison of the internet traffic data consumed by employees, significant discrepancies emerged.
GR1 (Government): All were using very little amounts except for the applicant.
GR1 (Government): Indeed, not only did Mr. Bobulescu
GR1 (Government): have the highest level of internet data use, but he had spent more time online than the rest of the employees together, as undeniably shown by the graphics.
GR1 (Government): On 13 July 2007, the company summoned the applicant for explanations.
GR1 (Government): Mr. Bobulescu provided written notifications
GR1 (Government): which started with the clear statement that he did not use Yahoo Messenger in personal interests.
GR1 (Government): He further showed that the high internet data level corresponded to conversations which were strictly professional with a potential client.
GR1 (Government): Detailed information was provided on the matter, showing even who that potential client was.
GR1 (Government): After Mr. Bobulescu's reassurance
GR1 (Government): of the completely professional nature of the conversations, the discipline committee, which comprised three persons, namely the director general, the manager, and the employee's representative, reviewed the communications and discovered that they were in fact conducted only in a personal interest.
GR1 (Government): After his second summoning, when presented with the transcripts of the conversations between 5 and 13 July 2007, the applicant responded in writing that he refrained from any comments.
GR1 (Government): The disciplinary proceedings ultimately led to the management dismissal decision of 1 August 2007.
GR1 (Government): The applicant challenged the measure by lodging a complaint before the competent labor court.
GR1 (Government): He claimed that the dismissal decision was null, as his communications were monitored without his prior knowledge, thus constituting a violation of his right to respect of the privacy of correspondence.
GR1 (Government): The court of first instance dismissed the challenge as ill-founded on 7 December 2007, and the ruling was subsequently upheld by the superior court's final decision of 17 June 2008.
GR1 (Government): On the point of monitoring of the applicant's electronic conversations, the domestic courts have found that the company's internal regulations contain a prohibition of the use of computers in the personal interest of employees, and that this prohibition was permitted by the provisions of the labor court.
GR1 (Government): The labor courts, sorry.
GR1 (Government): They further held that the employer was entitled to prohibit personal use of internet during business hours, as the availability of internet in the workplace should be seen as a professional tool whose use is subject to regulation by the employer.
GR1 (Government): In order to summarize, the national labor courts fully understood the fact of the case as described above, and within the framework of labor law proceedings, perform a thorough examination in relation to the relevant national and EU law provisions, having at the same time regards to the conventional requirement of a fair balance between competing private interests.
GR1 (Government): The judicial conclusions integrated the employer's internal regulation within its right normatively recognized to control the fulfillment of professional tasks, while verifying that this monitoring was performed with prior notice, and limited to the use of tools specifically listed as professional ones.
GR1 (Government): In addition to his complaint against the decision for his dismissal, Mr. Babulescu also filed
GR1 (Government): a criminal complaint against unknown persons who had violated his right to respect for his correspondence.
GR1 (Government): While acknowledging that the messages exchanged through Yahoo Messenger benefited from the protection of criminal law, the competent prosecution bodies held that the interception and monitoring of the communications were not unlawful, since the internet connection was established through the employer's server.
GR1 (Government): Moreover, the legal entity which was the beneficiary of the informatics systems and of the internet connection had both the right to control, in the interest of the unit, the traffic from informatics systems, and to dispose of the information retained on the server.
GR1 (Government): In addition, even the internal regulations forbade the use of informatics systems in a personal interest, being thus predictable that such a conduct could be monitored.
GR1 (Government): The applicant did not challenge the decision not to open criminal proceedings.
GR1 (Government): Mr. President, honorable judges,
GR1 (Government): the court has consistently held that the notion of private life is a broad concept, encompassing, for example, the right to establish and develop relationships with other human beings, and the right to identity and personal development.
GR1 (Government): The examination of the court's case law in this field discloses that Article 8 of the Convention is applicable in work relationships as regards the monitoring of communications, only provided that two major conditions are cumulatively met.
GR1 (Government): The first condition is that the nature of communication is personal.
GR1 (Government): Indeed, this condition flows from the actual conventional text, and also from the fact that conversations of employees with third parties in the name and interest of the employer are in fact the communications of the company itself.
GR1 (Government): It would appear beyond logic to hold that the employer had interfered with its own correspondence, or the correspondence dedicated to working activities.
GR1 (Government): The second condition is represented by the existence of a reasonable expectation of privacy.
GR1 (Government): The court takes into account a number of factors to ascertain the existence of an expectation of privacy, covering any given form of communication.
GR1 (Government): It attaches particular importance to prior warning as to the possibility of interception, and takes into account relevant circumstances, the designation used, such as private phone, and applicable workplace rules.
GR1 (Government): In the case of Harvard versus UK, the court held that in the absence of a warning that one's calls would be liable to monitoring, the applicant had a reasonable expectation as to the privacy of calls made from a work telephone.
GR1 (Government): The same expectation should apply in relation to an applicant's email and internet usage, according to the case of Copeland versus UK.
GR1 (Government): Para contrario, it follows that in the presence of a warning that one's communications would be liable to monitoring, the person no longer has the reasonable expectation of privacy.
GR1 (Government): Verifying whether the two conditions are met in the present case, with regard to the personal nature of communications, it needs to be highlighted that the review of the applicant's communications was performed only after the letter had been provided with the possibility to state that they were, even in part, personal.
GR1 (Government): He appeared outraged and described in details what the strictly professional communications contained.
GR1 (Government): As such, the review of communications was performed only by the three members of the discipline committee with observance of the confidentiality obligation within the exercise of disciplinary proceedings in the legitimate interest of determining them fairly.
GR1 (Government): The government did not challenge that the recording had been carried out at a previous time.
GR1 (Government): What needs to be underlined, however, is that there is a significant difference between recording of correspondence and the actual reviewing of its content.
GR1 (Government): Very relevant on this matter is an example inspired from the observations of the third party etuque concerning the processing of correspondence addressed to an employee at her workplace.
GR1 (Government): As such, when correspondence arrives at the company premises, the employer, through its registry, keeps the record of it.
GR1 (Government): Also, it can take notice of the sender and perhaps other information.
GR1 (Government): However, when it is not certain that the envelope contains information strictly limited to the working tasks of the recipient employee, the registry asks for clarifications in order to establish how to handle the envelope.
GR1 (Government): Should the recipient state that it is an envelope which contains a strictly professional aspect, the opening of the envelope and the subsequent review of its content cannot reasonably be regarded as a situation falling under the protection of Article 8.
GR1 (Government): Similarly, in the present application, the employer recorded the communications aspect which was known by the employees, both from the regulations and explicitly from the notice as described above, but proceeded to their review only after being reassured by Mr. Bobulescu
GR1 (Government): and in a very convincing manner that they were professional in their integrity.
GR1 (Government): Therefore, in the instant case, the grand chamber must examine whether the applicant had the reasonable expectation of privacy when communicating from the Yahoo Messenger account that he had registered at his employer's request, specifically designed in the sole purpose of fulfilling professional tasks.
GR1 (Government): Continuing the issue of applicable workplace rules, it needs to be underlined that the instant case is different from previous jurisprudence.
GR1 (Government): The court has found Article 8 to be applicable when the personal use of the office telephone, for example, was accepted.
GR1 (Government): The government strongly asserts that an identical approach cannot be embraced in this case where the applicable workplace rules were clear, specifically forbidding the conduct in question.
GR1 (Government): Moving along with the examination of the applicability of Article 8, the government took notice of the fact that the chamber accorded particular weight to the use to which the communications were put.
GR1 (Government): On this issue, important elements must be provided to the grand chamber.
GR1 (Government): Firstly, while agreeing that the transcripts were used in the disciplinary proceedings and in the subsequent trial phase, the government underlined that there is absolutely no indication that they were presented to the colleagues of the applicant and that they were discussed by them as the applicant claims.
GR1 (Government): In addition, the applicant stripped away the possibility for the employer to prove its observance of confidentiality.
GR1 (Government): The applicant himself and not the employer opted to make available to the general public the actual content of communications by attaching them to the challenge before the national court, even though this was not even necessary for the court's assessment.
GR1 (Government): Indeed, neither the court nor the company were ever interested in the actual content of the communications.
GR1 (Government): They only needed to establish the nature of the conversations in order to decide upon the existence or not of an internal regulations infringement.
GR1 (Government): Secondly, the use of the transcripts as evidence in trial was performed at the applicant's request.
GR1 (Government): In order to conclude, the government recalled that in the present case, the applicant's communications fall outside the protection of Article 8 because it was his own conduct characterized by convincing reassurance of their integral professional nature, which led to their subsequent review by the employer.
GR1 (Government): Because they were carried out in severe infringement of clear workplace rules, which forbade the conducting question, and in spite of the explicit warning of monitoring, departing from other cases where such warning was absent.
GR1 (Government): Because they are carried out from a device and by means which were specifically designed for professional tasks.
GR1 (Government): Because they are not processed excessively, but in the strict limit of disciplinary proceedings.
GR1 (Government): It was the applicant who opted to make them available to the public.
GR1 (Government): Otherwise said, the applicant intentionally screamed, and now he complains that too many people have heard.
GR1 (Government): The previous decision on the applicability of Article 8 was delivered by the chamber after holding that the existence of a proper warning of monitoring was a disputed aspect.
GR1 (Government): At present, the grand chamber knows that a proper warning of monitoring existed and was duly signed for acknowledgement by the applicant.
GR1 (Government): We therefore respectfully ask the grand chamber, after taking note of the document's explicit content, to hold that it completely striped away any reasonable expectation of privacy.
GR1 (Government): Mr. President, honorable judges, the government
GR1 (Government): wished to provide hereinafter the distilled information regarding the scope of Article 8 in relation to the events in the instant case.
GR1 (Government): As such, we fully share the chamber's view, showing that the applicant chose to raise before the national courts his complaint under Article 8 within the framework of labor law proceedings.
GR1 (Government): Thus, the alleged infringement of his respect for private life was only an argument he used in order to prove the nullity of his employer's decision, while the assessment of the legal and substantiated character of the dismissal measure constituted, in fact, the main object of the domestic case.
GR1 (Government): It follows that the object of his complaint before the grand chamber is limited to the monitoring of his communications within the framework of disciplinary proceedings.
GR1 (Government): The employer's decision to terminate the applicant's contract was not based on either the actual content of his communications, nor on the fact of their eventual disclosure.
GR1 (Government): In this regard, the government asserts that the applicant did not argue that he had had no other fora in which to bring these arguments separately before the domestic courts, as showed at the beginning of our oral pleading.
GR1 (Government): While the applicant criticized the absence of the enforcement of law on data protection and the activity of the criminal pursuit bodies, it needs to be recalled that these critics of the applicant were neither submitted before the national competent authorities.
GR1 (Government): As such, the applicant did not file a complaint on the basis of the law on data protection, nor did he raise this argument of an alleged infringement of data protection rights before the national courts.
GR1 (Government): Also, the applicant argued that the prosecution bodies erred when they determined the criminal case and that the proceedings were not expeditious.
GR1 (Government): It needs to be responded to the applicant that he did not participate in the criminal proceedings by any means, such as submitting requests or complaints.
GR1 (Government): Furthermore, the applicant did not even challenge the prosecutor's office decision before the chief prosecutor or the office, effective remedies which could have properly dispelled any alleged shortcomings.
GR1 (Government): Under these circumstances, the government respectfully asked the courts to dismiss their plan or for non-exhaustion of domestic remedies, any critics related to the alleged failure of national authorities to enforce the data protection or criminal provisions since these issues were raised before the court for the first time.
GR1 (Government): Mr. President, with your permission,
GR1 (Government): my colleague will now address the last point of the pleading regarding the issue of state responsibility.
GR1 (Government): I therefore respectfully ask you to give him the floor.
Guido Raimondi (JudgeP): Thank you very much, Mrs. Brumar.
Guido Raimondi (JudgeP): Now the floor goes to Mr. Gavrilă.
GR2 (Government): although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not simply compel the state to abstain from such interference.
GR2 (Government): The court held that in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life.
GR2 (Government): These obligations may involve the adoption of measures designed to secure respect for private life, even in the field of relations between individuals themselves.
GR2 (Government): In the instant case, the applicant's complaint must be examined from the standpoint of the state's positive obligations, since he was employed by a private company, which could not, by its actions, engage state responsibility under the convention.
GR2 (Government): The government fully agree with the submissions of France as an intervenant, showing that the instant case is about the protection provided by the legal framework and the national jurisdictions as regards the right to respect for private life and correspondence within the working relationship.
GR2 (Government): As such, the control of the court should concern the legal framework enacted by the state with the purpose to ensure effective protection of the said right, and at the same time, the decisions of the national jurisdictions which applied it, so as to strike a fair balance between the competing private interests.