Guide on Article 8 of the Convention – Right to respect for private and family life
advance of the possibility that the employer might monitor correspondence and other communications, and of the implementation of such measures; (ii) the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy (traffic and content); (iii) whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content; (iv) whether there is a possibility of establishing a monitoring system based on less intrusive methods and measures; (v) the seriousness of the consequences of the monitoring for the employee subjected to it as well as the use made of the results of monitoring; and (vi) whether the employee has been provided with adequate safeguards including, in particular, prior notification of the possibility of accessing the content of communications. Lastly, an employee whose communications have been monitored should have access to a "remedy before a judicial body with jurisdiction to determine, at least in substance, how the criteria outlined above were observed and whether the impugned measures were lawful" (Bărbulescu v. Romania [GC], §§ 121-122). 606. The case-law also covers the monitoring of correspondence in the context of a commercial bankruptcy (Foxley v. the United Kingdom, §§ 30 and 43). In Luordo v. Italy the Court found a violation of Article 8 on account of the repercussions of excessively lengthy bankruptcy proceedings on the bankrupt’s right to respect for his correspondence (§ 78). However, the introduction of a system for monitoring the bankrupt’s correspondence is not in itself open to criticism (see also Narinen v. Finland). 607. The question of companies’ correspondence is closely linked to that of searches of their premises (reference is accordingly made to the chapter on Commercial premises). For example, in Bernh Larsen Holding AS and Others v. Norway the Court found no violation on account of a decision ordering a company to hand over a copy of all data on the computer server it used jointly with other companies. Although the applicable law did not require prior judicial authorisation, the Court took into account the existence of effective and adequate safeguards against abuse, the interests of the companies and their employees and the public interest in effective tax inspections (§§ 172-175). However, the Court found a violation in the case of DELTA PEKÁRNY a.s. v. the Czech Republic, concerning an inspection of business premises with a view to finding circumstantial and material evidence of an unlawful pricing agreement in breach of competition rules. The Court referred to the lack of prior judicial authorisation, the lack of ex post facto review of the necessity of the measure, and the lack of rules governing the possibility of destroying the data obtained (§§ 92-93).
E. Surveillance of telecommunications in a criminal context75 608. The abovementioned requirements of Article 8 § 2 must of course be satisfied in this context (Kruslin v. France, § 26; Huvig v. France, § 25). In particular, such surveillance must serve to uncover the truth. Since it represents a serious interference with the right to respect for correspondence, it must be based on a “law” that is particularly precise (Huvig v. France, § 32) and must form part of a legislative framework affording sufficient legal certainty (ibid.). The rules must be clear and detailed (the technology available for use is continually becoming more sophisticated), as well as being both accessible and foreseeable, so that anyone can foresee the consequences for themselves (Valenzuela Contreras v. Spain, §§ 59 and 61). This requirement of sufficiently clear rules concerns both the circumstances in which and the conditions on which the surveillance is authorised and carried out. Since the implementation of measures of secret surveillance of communications is not See also File or data gathering by security services or other organs of the State, and the Guide on Data protection. 75
European Court of Human Rights
131/161
Last update: 31.08.2021
