TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Because it will show what was the real origin and the purpose of the spying.
AP1 (Applicant): It will show how there was intent to use the private communication against Mr. Borbulescu
AP1 (Applicant): and how illegally secured communication finally served as an ungrounded reason to terminate Mr. Borbulescu's
AP1 (Applicant): employment.
AP1 (Applicant): Because there was no other reason to sustain such dismissal.
AP1 (Applicant): And how Mr. Borbulescu's private communication
AP1 (Applicant): of sensitive nature became a public matter in the workplace, also discussed by his colleagues.
AP1 (Applicant): In the end, we will show how all this affected Mr. Borbulescu's
AP1 (Applicant): life.
AP1 (Applicant): Fourthly, we will show why this is a case of many and why the court needs to render a landmark decision that will affect millions of lives, calling the Grand Chamber to take action and to protect a single fundamental human right in question.
AP1 (Applicant): Now, while both opinions of the chamber concluded there has been an interference as regards Mr. Borbulescu's fundamental right to privacy,
AP1 (Applicant): they come to contradictory conclusions.
AP1 (Applicant): Thus, there is a wide gap between the majority's opinion and the dissenting one, whereas the latter opinion is the single one that retained the correct facts of this case and thus correctly applied the provision of the convention.
AP1 (Applicant): Because this interference that both opinions say existed was not in accordance with the law.
AP1 (Applicant): And this is why it is the dissenting opinion which is in accordance with the correct interpretation of the convention.
AP1 (Applicant): We would start by pointing out two of the main issues that were fully overlooked by the majority.
AP1 (Applicant): On one hand, the court's Grand Chamber recently stated that access to internet provides an unprecedented platform for the exercise of freedom of expression.
AP1 (Applicant): Even the French Constitutional Council has affirmed that in a democratic state, expression of ideas and opinions is a crucial matter, whereas the right to freedom of expression implies freedom to access to internet.
AP1 (Applicant): Thus, states have a positive obligation to promote and facilitate universal internet access.
AP1 (Applicant): Consequently, access to internet cannot be qualified as a right granted by any employer to the employee, but rather part of the human's fundamental right to freedom of expression.
AP1 (Applicant): Also, contrary to what the majority's opinion conclusion, a blanket ban on personal use of the internet by the employees is firstly inadmissible, is impractical, and slightly unrealistic.
AP1 (Applicant): Because it fails to reflect the degree to which internet not only can assist employees, but does so in their day to day activity.
AP1 (Applicant): This is not a goal to achieve anyway when using instant messaging.
AP1 (Applicant): And this is important in this case.
AP1 (Applicant): Because it is the employer that asked Mr. Balbuescu
AP1 (Applicant): to set up an instant messaging account.
AP1 (Applicant): With the hope that he will be contacted by the employer's clients.
AP1 (Applicant): So it is actually the employer who had the reasonable expectation that personal communication may occur, as it generally does when using instant messaging.
AP1 (Applicant): On the other hand, what the majority also failed to acknowledge, it there is no fundamental right of any employer in question.
AP1 (Applicant): The single fundamental human right in question is the one provided by Article 8 and no other.
AP1 (Applicant): Of course, the right to private life and protection of private data has to be balanced, but only by legitimate rights and interests of the employer.
AP1 (Applicant): And such balancing may only be achieved by observing a series of principles.
AP1 (Applicant): As we will show in this case, there was no legitimate interest.
AP1 (Applicant): There was no legitimate right of the employer.
AP1 (Applicant): Whereas all principles that have been developed by the court in terms of privacy of internet communication have been completely disregarded by the employer.
AP1 (Applicant): And such breach finally incorrectly confirmed by the majority.
AP1 (Applicant): In other words, the majority, by failing to see the true facts of the case, really concluded that it is allowed for an employer to spy on his employee, because we cannot honestly say that there has been a monitoring, let alone a legitimate one.
AP1 (Applicant): All of the principles of monitoring in the workplace have been infringed.
AP1 (Applicant): The court needs to establish now if Mr. Barbulescu's
AP1 (Applicant): so-called monitoring, a true spying, was transparent to him or not.
AP1 (Applicant): Was the spying necessary if the employer failed to claim any damage or harm to his activity?
AP1 (Applicant): Was the processing of Mr. Barbulescu's private data fair
AP1 (Applicant): and protected in the workplace?
AP1 (Applicant): Was it proportionate with any interest it tried to balance?
AP1 (Applicant): The answer is no, no, and no.
AP1 (Applicant): The Article 29 Working Party's view on the matter is essential.
AP1 (Applicant): It states the principle of prevention, namely that prevention should be more important than detection.
AP1 (Applicant): The interest of the employer being better served by preventing internet misuse and not by detecting internet misuse.
AP1 (Applicant): And this case appears to be more extraordinary, as Mr. Barbulescu's employer did not state at any point
AP1 (Applicant): that he failed to properly and timely fulfill his work duties.
AP1 (Applicant): So why monitor him at all?
AP1 (Applicant): In any case, this so-called monitoring was not transparent.
AP1 (Applicant): The undoubtful evidence to this fact is the sheer existence of the correspondence in the form collected and revealed by the employer.
AP1 (Applicant): One could hardly comprehend the existence of such correspondence, also referring to hostile work environment, also referring to bullying bosses in the context of any transparent monitoring performed by the employer.
AP1 (Applicant): The subject and the content of the instant messaging fully excludes the possibility to sustain that Mr. Barbulescu either knew or at least had
AP1 (Applicant): the slightest clue about the spying or monitoring of his instant messaging accounts.
AP1 (Applicant): Actually, nobody really expects that their instant messaging accounts, their private accounts, are being ever monitored.
AP1 (Applicant): Contrary to what the state claimed, contrary to what the majority concluded, there was no work policy on internet use in place.
AP1 (Applicant): We cannot escape the fact that the state failed to meet the burden of proof in this respect and to provide evidence, first, that there's been a workplace internet policy in use and that it was duly acknowledged and accepted by Mr. Barbulescu.
AP1 (Applicant): The state's attempt to produce a side notice at this stage, before the Grand Chamber, is an important fact by itself.
AP1 (Applicant): Because there was no side notice until now.
AP1 (Applicant): Because such a side notice was never produced and used before the domestic courts.
AP1 (Applicant): So in lack of any prior and accepted policy and notice, the arguments raised by the French government actually sustain Mr. Barbulescu's case
AP1 (Applicant): and not the other way around.
AP1 (Applicant): And even so, the so-called notice is nothing more than a threaten directing against the employee, showing little to no concern to their right to dignity.
AP1 (Applicant): The so-called notice contains no specific reference to any monitoring, to how and when it will be performed, who will be its subject, what will be investigated, what will be the technical means engaged in this monitoring, and what are the workers' rights as regards to the collected data.
AP1 (Applicant): As the partly descending opinion states, such a poorly drafted policy, if existent, offered precious little protection to the employee.
AP1 (Applicant): And now I read from the words of Mr. Pinto.
AP1 (Applicant): I cannot but consider that the notice did not identify the minimum elements of an internet usage and surveillance policy, including the specific misconduct being monitored, the technical means of surveillance, and the employee's rights regarding the monitored materials.
AP1 (Applicant): Making records prior to initiating the so-called disciplinary research, conducting the disciplinary research in two stages, we are at the first stage occurring at 4.30,
AP1 (Applicant): when Mr. Barbulescu was asked to explain
AP1 (Applicant): the use of the computer for personal interest, and the second stage that occurred 50 minutes later, when the employee was faced with the actual transcript of his personal communication, proves without a doubt that the monitoring of his internet communication was conducted well before the disciplinary procedure even started.
AP1 (Applicant): Contrary to the majority's decision and to what the state claims, Mr. Barbulescu was not monitored.
AP1 (Applicant): Mr. Barbulescu was spied by his employer using spyware.
AP1 (Applicant): And what is spyware, but the software that enables a user to obtain covert information about another's computer by transmitting data covertly from their hard drive.
AP1 (Applicant): Such software is generally used in a non-transparent way, this excluding, of course, any knowledge of its use by the spied subject.
AP1 (Applicant): If the employer would have had access to the Yahoo Messenger account, such software would not have been necessary.
AP1 (Applicant): Mr. Barbulescu was definitely not
AP1 (Applicant): aware about the installation of W-Filter spyware, nor was he ever informed about the existence of such software in the workplace, nor there's been any reference in the so-called notice as the use of spyware by the employer to keep track of the employee's communication.
AP1 (Applicant): Use of this software was in breach with the provisions of Article 28 of the Romanian Constitution, was in breach with the employer's internal regulation, was in breach with the provisions of the Romanian Criminal Code, was in breach with even the terms and conditions of such software that provided that it can only be used in accordance with the law.
AP1 (Applicant): So how can this be monitoring?
AP1 (Applicant): This statement of facts alone basically rules the application of any principles of employees monitoring and definitely rules out any prevention.
AP1 (Applicant): Also, it's not a coincidence that Mr. Barbulescu's
AP1 (Applicant): first summons, 3772, mentioned from the starting point that he had used the computer and internet connection for personal interest.
AP1 (Applicant): How could the employer have known the nature of Mr. Barbulescu's communication
AP1 (Applicant): at this preliminary stage of the disciplinary procedure?
AP1 (Applicant): But he did know.
AP1 (Applicant): Mr. Barbulescu's so-called monitoring
AP1 (Applicant): was not even necessary.
AP1 (Applicant): There was no misconduct supposedly investigated by the employer.
AP1 (Applicant): On contrary, Mr. Barbulescu was considered
AP1 (Applicant): to be a good employer that duly fulfilled his work duties.
AP1 (Applicant): Use of the internet alone cannot constitute by itself a misconduct and furthermore, a reason for termination.
AP1 (Applicant): And we should all bear in mind that it was not alleged and of course not proven that Mr. Barbulescu had caused
AP1 (Applicant): any actual damage to his employer or that he had adopted the same pattern of behavior for a considerable period of time.
AP1 (Applicant): And on this note, I will allow my colleague to continue the pleading.
AP2 (Applicant): Thank you, Mr. President, honored Grand Chamber.
AP2 (Applicant): As my colleague said to me, in a figurative manner of speaking, of course, I easily can act now in this case more as a witness than as a lawyer, as I have been involved in it from its beginning.
AP2 (Applicant): But if to say the complete truth, I was involved in this case even before its beginning.
AP2 (Applicant): I have been a part of this case from its origins.
AP2 (Applicant): As I defended Mr. Barbulescu in the first part of year 2007 in front of domestic labor
AP2 (Applicant): courts against a disciplinary measure applied by the same employer for the single fact that Mr. Barbulescu has a dignity to accuse the improper working conditions and behavior of
AP2 (Applicant): his superior calling for an improvement.
AP2 (Applicant): In that particular case, the court ruled in favor of Mr. Barbulescu and concludes there
AP2 (Applicant): is no misconduct and thus the disciplinary sanction was held as ungrounded.
AP2 (Applicant): Why is this important here?
AP2 (Applicant): Because this is, as we said, is the actual origin and the true reason of Mr. Barbulescu's
AP2 (Applicant): dismissal.
AP2 (Applicant): Cassius Bailey was the canvas of the employer's actions that lead to his right to private life being tarnished.
AP2 (Applicant): All of the employer's actions had been to artificially assess the motives against Mr.
AP2 (Applicant): Barbulescu that could apparently sustain a safe termination of the employment agreement as the initiative of employer.
AP2 (Applicant): On the other hand, I am the one who can be blamed that this case arrived here today.
AP2 (Applicant): Why blame?
AP2 (Applicant): Because I believe 100 percent in truth and justice.
AP2 (Applicant): These are exact values we all have sworn to protect.
AP2 (Applicant): And if I deeply know that an injustice was made, I cannot keep silent, so I constantly advise Mr. Barbulescu not to abandon his rights in face of any obstacle and fight for his
AP2 (Applicant): justice.
AP2 (Applicant): I wonder, is Romania not Mr. Barbulescu's state?
AP2 (Applicant): Is Romania not the state where all of this happened?
AP2 (Applicant): Should not Romania, before anybody else, be the one to defend Mr. Barbulescu's fundamental
AP2 (Applicant): rights, especially the fundamental human right provided by Article 8 of the Convention?
AP2 (Applicant): If this is the case, why are we arguing today with Romania about not observing Mr. Barbulescu's
AP2 (Applicant): right to private life?
AP2 (Applicant): Did Romania accomplish its positive obligation to protect state fundamental human rights in Mr. Barbulescu's case?
AP2 (Applicant): If it would have done so, we would not have been here today.
AP2 (Applicant): We are sure that this Court will find to the contrary.
AP2 (Applicant): We stand here in front of the highest body of human rights for two main reasons, and with the hope to achieve the following goals.
AP2 (Applicant): To ensure justice is served in the case of Mr. Barbulescu facing justice, the system
AP2 (Applicant): is restored.
AP2 (Applicant): But we are also here today for millions of other workers who are now looking at us, waiting to see if we are able to defend them against the ever-growing and arbitrary need of their employers to invade their private lives.
AP2 (Applicant): Why justice for Mr. Barbulescu?
AP2 (Applicant): Because the national courts failed to protect his fundamental right to private life and allowed illegal security and instant messaging records to serve as apparent grounds for the termination decision that was taken even before that so-called evidence was produced.
AP2 (Applicant): This fact remained uncontested up to this day.
AP2 (Applicant): By doing so, Mr. Barbulescu's rights were fewer than those of a crime suspect.
AP2 (Applicant): Thus, the dismissal decision is as illegal as the so-called evidence that sustained it.
AP2 (Applicant): The domestic labor courts also fully dismissed the concept of prevention and basically confirmed the employer's spying over its employees, failed to see that it was actually not Mr.
AP2 (Applicant): Barbulescu, but the other two people involved in the instant messaging exchange who generated and started every conversation, failed to see that Mr. Barbulescu was not previously
AP2 (Applicant): informed about the monitoring taking place and the lack of any damage incurred by the employer, and finally, failed to see the lack of protection of Mr. Barbulescu's private
AP2 (Applicant): communication in the way of instant messaging from the workplace.
AP2 (Applicant): And all of this because Mr. Barbulescu has the courage to complain about the work condition
AP2 (Applicant): and ask for their improvement.
AP2 (Applicant): Also, Mr. Barbulescu's criminal complaint has not been actually properly solved until
AP2 (Applicant): this day.
AP2 (Applicant): On a first note, the criminal investigation department of the Bucharest 1st District failed to provide any answer for a period of no less five years, and the answer finally came from another body.
AP2 (Applicant): The court has concluded that Mr. Barbulescu, his fiancé, and his brother were working
AP2 (Applicant): for SecPral Proinstallazione and there had been no crime committed by the employer.
AP2 (Applicant): This is of course false, as neither his fiancé nor his brother ever worked with him for SecPral.
AP2 (Applicant): This is a serious error as above all the criminal investigators and prosecutors are called to firstly determine the correct facts of the case.
AP2 (Applicant): This never happened in Mr. Barbulescu's criminal complaint.
AP2 (Applicant): He found himself the subject of terror in the workplace, as it culminated with the termination of his employment contract.
AP2 (Applicant): Articles 63 and 268 of the Romanian Labor Code provided a very strict procedure for sanctioning employees with the aim to protect them against any potential abuse from the employers, so easily to achieve in the subordination report specific to labor agreements.
AP2 (Applicant): But if even the simple failure to observe the procedure should lead to the disciplinary decision being null and void, how can a much more serious situation like the breach of private life protected by Article 8 and the crime in this time not lead to the same result?
AP2 (Applicant): When a disciplinary measure is taken as a result of the employer's illegal behavior, like it happened in this case through the breach of the employee's fundamental human rights, the disciplinary sanction has to be annulled.
AP2 (Applicant): In the claim against the termination of the employment agreement, we have asked the national courts to apply among others Article 8 as interpreted by the court in Copeland v. Great
AP2 (Applicant): Britain that is applicable mutatis mutandis in this case.
AP2 (Applicant): Nevertheless, the Romanian Labor Code failed to apply Copeland and to understand its significance and the similarity with this case.
AP2 (Applicant): The core of this case is that there could not be a valid dismissal procedure grounded on illegal foundation represented by the breach of right to private life of the employee, despite the sharp definition of this right achieved in Copeland that was only a few months old at that time.
AP2 (Applicant): The failure of the national courts at the same time is the failure of the Romania state to undergo its positive obligation under convention in this particular case.
AP2 (Applicant): The state failed to protect Mr. Barbulescu's fundamental rights, failed to react when Mr.
AP2 (Applicant): Barbulescu's fundamental rights were tarnished, and also fails him even today when trying to argue to the contrary before the court.
AP2 (Applicant): This had a very serious and permanent impact over Mr. Barbulescu's life.
AP2 (Applicant): He lost his job and has yet been able to find a new one.
AP2 (Applicant): This left him unable to support himself and his family while also pointing an end to his relation with his fiancée, who ended up leaving the country.
AP2 (Applicant): He eventually stopped believing in himself, and for a long period of time, hope evaded him.
AP2 (Applicant): He lost faith in the justice system, and finally his view and direction about his life in general turned for the worse.
AP2 (Applicant): It ruined a young life.
AP2 (Applicant): He was 28 at that time, now he is 37.
AP2 (Applicant): Why is this the case of the many, as my colleague said previously?
AP2 (Applicant): Because besides serving justice for the past, there is also a need to ensure a fair balance for the future.
AP2 (Applicant): Just one judge, Mr. Pinto Dalbuquerque, understood exactly and did justly with these two faces
AP2 (Applicant): of the problem while acknowledging that Mr. Barbulescu has served insofar only with injustice.
AP2 (Applicant): Hundreds of opinions publicly expressed on the Internet, on European and international mass media, in law studies and public debates were focusing on the outcome of the course majority decision and really it was the argument of the dissenting opinion.
AP2 (Applicant): Express the expectations that the judgment will be withdrawn by the Grand Chamber.
AP2 (Applicant): The judgment sends a negative signal for millions of employees who may see their right to private life denied by the employers following the abusive and excessive monitoring.
AP2 (Applicant): In the case at hand, the monitoring conducted by the employer was not proportional and in accordance with the principles set out by the court in Copeland and Halford cases.
AP2 (Applicant): As Judge Pinto Dalbuquerque said better than us, the delicate character of the present case is significantly increased by the nature of Mr. Barbulescu's private correspondence
AP2 (Applicant): violated by the employer.
AP2 (Applicant): This subject pertains to the court of the applicant's private life and requires the most intense protection under Article 8.
AP2 (Applicant): For what is worse, I would not personally like my private communication breached, used against me and any of my private correspondence or messaging become a public subject with little to no protection against this.
AP2 (Applicant): Thus, this case is about all workers who have faced or might face in the future the same abusive and even illegal conduct.
AP2 (Applicant): While we acknowledge that the protection of the employee's internet communication and international law is a developing matter, we deem that no single occasion should be lost when such abusive conduct like the one in this case occurs and gives to the human rights protection bodies the opportunity to enhance the principles of the employer's interference with the employee's communications on the internet.
AP2 (Applicant): The Grand Chamber has now the opportunity to clarify this issue of general importance and consequently to trace a clear boundary inside which the employer could monitor its employees over the internet, bearing in mind that there is in question no protection of any fundamental human right of the employer, which could prevail against the protection of fundamental human rights to private life protected by Article 8 of the Convention.
AP2 (Applicant): Most relevant opinions see the first judgment as a shift in the court's practice in contrast with Copeland and Halford, the judgment on the other hand, and more specifically the majority decision is the result of misinterpretation of the facts leading to fundamentally erroneous results.
AP2 (Applicant): Nowadays, when various means of instant messaging are widespread, example, Facebook Messenger, Yahoo Messenger, WhatsApp, Skype, et cetera, and available on any kind of devices provided by the employer, when each employee could be found online by their private contacts in occasions when they are performing work-duty tasks, it's a very likely and common situation.
AP2 (Applicant): This is why the issue raised by the case of Bolescu v. Romania presents a tremendous interest
AP2 (Applicant): both for the employees and the employers in protection of private life and their rights in such relationships.
AP2 (Applicant): Thus is why we urge the Court to acknowledge the huge potential of these conditions repeating themselves given that instant messaging is part of our lives and the substantial differences between the factual features retained by the Chamber's majority and the reality of the day-to-day life.