JOINT DISSENTING OPINION OF JUDGES RAIMONDI, DEDOV, KJØLBRO, MITS, MOUROU-VIKSTRÖM AND EICKE

Introduction

1. We agree with the majority, some of us with some hesitation, that, even in a context where on the facts before the Court it is difficult to see how the applicant could have had a “reasonable expectation of privacy” (see below), Article 8 is applicable in the circumstances of this case (see paragraphs 69 to 81 of the judgment). With Article 8 having been found to be applicable, we also agree that this applicant’s complaint falls to be examined from the standpoint of the State’s positive obligations (see paragraph 111 of the judgment). Subject to what follows, we also agree with the general principles applicable to the assessment of the State’s positive obligation, as set out in paragraphs 113 to 122 of the judgment.

2. However, for the reasons set out below, we respectfully disagree with the majority in relation to the correct approach to the State’s positive obligation in the context of this case and their ultimate conclusion that the “domestic authorities”, by which the majority means only the employment courts, “did not afford adequate protection of the applicant’s right to respect for his private life and correspondence and that they consequently failed to strike a fair balance between the interests at stake” (see paragraph 141 of the judgment).

Principle

3. In light of the fact that there is common ground that the present application is to be considered by reference to the State’s positive obligation under Article 8, the appropriate starting point is provided by the Court’s case-law defining the content and reach of the concept of “positive obligations” under Article 8. The relevant principles were most recently summarised by the Grand Chamber, in the context of the positive obligation to protect the applicant’s physical and psychological integrity from other persons, in Söderman v. Sweden ([GC], no. 5786/08, §§ 78-85, ECHR 2013). There the Court made clear that:

(a) the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia , Airey v. Ireland , 9 October 1979, § 32, Series A no. 32) ( Söderman , cited above, § 78);

(b) the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is in issue (see, for example, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 104, ECHR 2012; Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003‑III; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007‑I; and Mosley v. the United Kingdom , no. 48009/08, § 109, 10 May 2011) ( Söderman , cited above, § 79); and

(c) in respect of less serious acts between individuals, which may violate psychological integrity, the obligation of the State under Article 8 to maintain and apply in practice an adequate legal framework affording protection does not always require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection (see, mutatis mutandis , X and Y v. the Netherlands , 26 March 1985, §§ 24 and 27, Series A no. 91, and K.U. v. Finland , no. 2872/02, § 47, ECHR 2008). The Court notes, for example, that in some previous cases concerning the protection of a person’s picture against abuse by others, the remedies available in the member States have been of a civil-law nature, possibly combined with procedural remedies such as the granting of an injunction (see, inter alia , Von Hannover , cited above; Reklos and Davourlis v. Greece , no. 1234/05, 15 January 2009; and Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002) ( Söderman , cited above, § 85).

4. The facts of this case, as the majority at least implicitly accepts (see paragraph 80 of the judgment), are, of course, a million miles away from the seriousness of the cases considered in Söderman . After all, in that case the Court was concerned with allegations of the violation of a person’s physical or psychological integrity by another person.

5. Nevertheless, even in that context, it is clear, firstly, that the choice of measures designed to secure respect for private life under Article 8, even in the sphere of the relations of individuals between themselves, is primarily for the Contracting States; a choice in relation to which they enjoy a wide margin of appreciation (see paragraph 119 of the judgment; narrowing where, unlike in the present case, a particularly important facet of an individual’s existence or identity is at stake, or where the activities at stake involve a most intimate aspect of private life). This conclusion is underlined by the fact that there is no European consensus on this matter and only six out of thirty-four surveyed Council of Europe member States have explicitly regulated the issue of the workplace privacy (see paragraphs 52 and 118 of the judgment). Secondly, the “measures” adopted by the State under Article 8 should in principle take the form of an adequate “legal framework” affording protection to the victim. Article 8 does not necessarily require that an efficient criminal-law provision covering the specific act be in place. The legal framework could also consist of civil-law remedies capable of affording sufficient protection.

6. This, of course, applies mutatis mutandis in the present case where, as the majority identify, the Court is at best concerned with the protection of a core or minimum level of private life and correspondence in the work place against interference by a private law employer.

The focus of the enquiry

7. Having identified some of the principles set out above, the majority, in paragraph 123, unjustifiably in our view, narrowed its enquiry to the question “how the domestic courts to which the applicant applied dealt with his complaint of an infringement by his employer of his right to respect for private life and correspondence in an employment context”.

8. Although recognising that “protective measures are not only to be found in labour law, but also in civil and criminal law” (see paragraph 116 of the judgment), the majority in fact sidelined and avoided the real question that falls to be answered, namely: did the High Contracting Party maintain and apply an adequate “legal framework” providing at least civil-law remedies capable of affording sufficient protection to the applicant?

9. As the respondent Government submitted, and the majority accepts, the relevant “legal framework” in Romania consisted not only of the employment courts, before which the applicant raised his complaint, but also included inter alia :

(a) the criminal offence of “breach of secrecy of correspondence” under Article 195 of the Criminal Code (see paragraph 33 of the judgment); incidentally, a remedy which the applicant engaged by lodging a criminal complaint but, following a decision by the prosecutor that there was no case to answer, failed to exhaust by not challenging that decision in the domestic courts: paragraph 31 of the judgment;

(b) the provisions of Law no. 677/2001 “on the protection of individuals with regard to the processing of personal data and on the free movement of such data” (see paragraph 36 of the judgment), which, in anticipation of Romania’s accession to the EU, reproduces certain provisions of Directive 95/46/EC of the European Parliament and of the Council of the European Union of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. This Law expressly provides, in Article 18, for a right to (i) lodge a complaint with the supervisory authority and, in the alternative or subsequently, (ii) apply to the competent courts for protection of the data protection rights safeguarded by the Act, including a right to seek compensation in relation to any damage suffered; and

(c) the provisions of the Civil Code (Articles 998 and 999; paragraph 34 of the judgment) enabling a claim in tort to be brought with a view to obtaining reparation for the damage caused, whether deliberately or through negligence.

10. Other than the criminal complaint which was not pursued any further, none of the domestic remedies was ever engaged by the applicant. Instead, the applicant only applied to the employment courts to challenge not primarily the interference by his employer with his private life/correspondence but his dismissal. As the majority note in paragraph 24:

“He asked the court, firstly, to set aside the dismissal; secondly, to order his employer to pay him the amounts he was owed in respect of wages and any other entitlements and to reinstate him in his post; and thirdly, to order the employer to pay him 100,000 Romanian lei (approximately 30,000 euros) in damages for the harm resulting from the manner of his dismissal, and to reimburse his costs and expenses.”

11. It was only in the context of these dismissal proceedings that, relying on the judgment of this Court in Copland v. the United Kingdom (no. 62617/00, §§ 43-44, ECHR 2007-I), he argued that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law.

12. The fact that the applicant’s focus was primarily, if not exclusively, on the legality of his dismissal, rather than the interference by his employer with his right to respect for private life/correspondence, is also reflected in the way his case was presented before this Court. As the judgment notes at paragraph 55, the applicant’s complaint was that “his dismissal by his employer had been based on a breach of his right to respect for his private life and correspondence and that, by not revoking that measure, the domestic courts had failed to comply with their obligation to protect the right in question”.

13. As a consequence, one cannot help but note (if only in passing) that, if the respondent Government had raised this as a preliminary objection, there might have been some question as to whether, by applying to the employment courts on the basis he did, the applicant had, in fact, exhausted those domestic remedies “that relate to the breaches alleged and which are at the same time available and sufficient” (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III). After all, there is no material before the Court to suggest that any of the three remedies identified above, and, in particular, a complaint to the specialist data protection supervisory authority and/or an action for damages under Law no. 677/2001 before the competent courts were “bound to fail” (see Davydov and Others v. Russia , no. 75947/11, § 233, 30 May 2017).

14. Our doubts about the effectiveness of the employment courts in this context (and the appropriateness of the Court restricting its analysis to the adequacy of the analysis by those employment courts) is further underlined by the fact that, in line with this Court’s jurisprudence under Article 6 of the Convention, regardless of whether or not the employer’s actions were illegal that fact could not per se undermine the validity of the disciplinary proceedings in the instant case. After all, as this Court confirmed most recently in Vukota-Bojić v. Switzerland (no. 61838/10, §§ 94-95, 18 October 2016):

“... the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including respect for the applicant’s defence rights and the quality and importance of the evidence in question (compare, inter alia , Khan , cited above, §§ 35-40; P.G. and J.H. v. the United Kingdom , cited above, §§ 77-79; and Bykov v. Russia [GC], no. 4378/02, §§ 94-98, 10 March 2009, in which no violation of Article 6 was found).

In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubts on its reliability or accuracy. Finally, the Court will attach weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (compare, in particular, Khan , cited above, §§ 35 and 37).”

15. In any event, the above alternative domestic remedies, some of which are more obviously suitable to the protection of an individual’s private life/correspondence in the private workplace, were plainly relevant to the assessment whether the “legal framework” created by Romania was capable of providing “adequate” protection to the applicant against an unlawful interference with his right to respect for private life/correspondence under Article 8 by another private individual (in this case, his employer).

16. By not including them, sufficiently or at all, in their analysis, the majority failed to have regard to important factors relevant to the question posed by this case and failed to give due weight to the acknowledged wide margin of appreciation enjoyed by High Contracting Parties in determining what measures to take and what remedies to provide for in compliance with their positive obligation under Article 8 to put in place an adequate “legal framework”. Absent any evidence to suggest that the domestic remedies either individually or cumulatively were not sufficiently available or effective to provide the protection required under Article 8, it seems to us that there is no basis on which the Court could find a violation of Article 8 in the circumstances of the present case.

17. Before leaving this question of the appropriate focus for the enquiry, we would want to express our sincere hope that the majority judgment should not be read as a blanket requirement under the Convention that, where more appropriate remedies are available within the domestic legal framework (such as e.g. those required to be put in place under the relevant EU data protection legislation), the domestic employment courts, when confronted with a case such as that brought by the applicant, are required to duplicate the functions of any such, more appropriate, specialist remedy.

The analysis by the domestic employment courts

18. However, even if, contrary to the above, the majority’s focus only on the analysis by the domestic employment courts were the appropriate approach, we also do not agree that, in fact, that analysis is defective so as to lead to a finding of a violation under Article 8.

19. In considering the judgments of the County Court and the Bucharest Court of Appeal, we note that both domestic courts took into consideration the employer’s internal regulations, which prohibited the use of company resources for personal purposes (see paragraphs 12, 28 and 30 of the judgment). We further observe that the applicant had been informed of the internal regulations, since he had acquainted himself with them and signed a copy of them on 20 December 2006 (see paragraph 14 of the judgment). The domestic courts interpreted the provisions of that instrument as implying that it was possible that measures might be taken to monitor communications, an eventuality that was likely to reduce significantly the likelihood of any reasonable expectation on the applicant’s part that the privacy of his correspondence would be respected (contrast Halford v. the United Kingdom , 25 June 1997, § 45, Reports of Judgments and Decisions 1997 ‑ III, and Copland , cited above, § 42). We therefore consider that the question of prior notification should have been examined against this background.

20. In this context, it is clear on the evidence before the Court that the domestic courts did indeed consider this question. Both the County Court and the Court of Appeal attached a certain weight to the information notice which the applicant had signed, and their decisions indicate that a signed copy of the notice was produced in the proceedings before them (see paragraphs 28 and 30 of the judgment). The County Court observed, among other things, that the employer had warned its employees that their activities, including their computer use, were being monitored, and that the applicant himself had acknowledged the information notice (see paragraph 28 of the judgment). The Court of Appeal further confirmed that “personal use [of company resources could] be refused ... in accordance with the provisions of the internal regulations”, of which the employees had been duly informed (see paragraph 30 of the judgment). Accordingly, the domestic courts found, on the basis of the documents in their possession, that the applicant had received sufficient warning that his activities, including his use of the computer made available to him by his employer, could be monitored. We can see no basis for departing from their decisions, and consider that the applicant could reasonably have expected his activities to be monitored.

21. Next, we note that the national authorities carried out a careful balancing exercise between the interests at stake, taking into account both the applicant’s right to respect for his private life and the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company (see paragraphs 28 and 30 of the judgment; see also, mutatis mutandis , Obst v. Germany , no. 425/03, § 49, 23 September 2010, and Fernández Martínez v. Spain [GC], no. 56030/07, § 151, ECHR 2014 (extracts). The Court of Appeal, in particular, citing the provisions of Directive 95/46/EC, noted that there had been a conflict in the present case between “the employer’s right to engage in monitoring and the employees’ right to protection of their privacy” (see paragraph 30 of the judgment).

22. We also note that, on the basis of the material in their possession, the domestic courts found that the legitimate aim pursued by the employer in engaging in the monitoring of the applicant’s communications had been to exercise “the right and the duty to ensure the smooth running of the company” (see the Court of Appeal as quoted at paragraph 30 of the judgment). While the domestic courts attached greater weight to the employer’s right to ensure the smooth running of the company and to supervise how employees performed their tasks in the context of their employment relationship than to the applicant’s right to respect for his private life and correspondence, we consider that it is not unreasonable for an employer to wish to check that its employees are carrying out their professional duties when making use in the workplace and during working hours of the equipment which it has made available to them. The Court of Appeal found that the monitoring of the applicant’s communications was the only way for the employer to achieve this legitimate aim, prompting it to conclude that a fair balance had been struck between the need to protect the applicant’s private life and the employer’s right to supervise the operation of its business (see paragraph 30 of the judgment).

23. In our view, the choice of the national authorities to give the employer’s interests precedence over those of the employee is not capable in itself of raising an issue under the Convention (see, mutatis mutandis , Obst , cited above, § 49). We would reiterate that where they are required to strike a balance between several competing private interests, the authorities enjoy a certain discretion (see Hämäläinen v. Finland [GC], no. 37359/09, § 67 in fine, ECHR 2014, and further references). In the present case, therefore, it is our view that the domestic courts acted within Romania’s margin of appreciation.

24. We further note that the monitoring to which the applicant was subjected was limited in time, and that the evidence before the Court indicates that the employer only monitored the applicant’s electronic communications and internet activity. Indeed, the applicant did not allege that any other aspect of his private life, as enjoyed in a professional context, had been monitored by his employer. Furthermore, on the evidence before the Court, the results of the monitoring operation were used solely for the purposes of the disciplinary proceedings against the applicant and only the persons involved in those proceedings had access to the content of the applicant’s communications (for a similar approach see Köpke v. Germany (dec.), no. 420/07, 5 October 2010). In this connection, it is observed that the majority agree that the applicant did not substantiate his allegations that the content in question had been disclosed to other colleagues (see paragraph 126 of the judgment).

25. Lastly, we note that in their examination of the case, the national authorities took into account the attitude displayed by the applicant in the course of his professional activities in general, and during the disciplinary proceedings against him in particular. Thus, the County Court found that he had committed a disciplinary offence by breaching his employer’s internal regulations, which prohibited the use of computers for personal purposes (see paragraph 28 of the judgment). The domestic authorities attached significant weight in their analysis to the applicant’s attitude in the disciplinary proceedings, during which he had denied using his employer’s resources for personal purposes and had maintained that he had used them solely for work-related purposes, which was incorrect (see paragraphs 28 and 30 of the judgment). They were plainly entitled to do so. This was confirmed when the applicant asserted before this Court that, despite the fact that he knew that private use of his work computer was prohibited, it would only have been an awareness of monitoring by the employer which would have led him not to engage in private use of the employer’s computer; he did not deny that he was informed about the monitoring, but could not remember when he had received the information notice alerting him to the monitoring.

26. After all, as the majority also stress (see paragraph 121 of the judgment), in order to be fruitful, employment relations must be based on mutual trust (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 76, ECHR 2011). Accordingly, it is our view that within their margin of appreciation, the domestic (employment) courts were entitled, when weighing up the interests at stake, to take into account the attitude displayed by the applicant, who had broken the bond of trust with his employer.

27. Having regard to all the foregoing considerations and in contrast to the majority, we conclude that there has been no failure to protect the applicant’s right to respect for his private life and correspondence and that there has, therefore, been no violation of Article 8 of the Convention.