INTRODUCTION Thank you Mr./Mrs. Chairman, Dear distinguished Jury - - PDF document

INTRODUCTION Thank you Mr./Mrs. Chairman, Dear distinguished Jury Members, Dear Participants, Dear All, Thank you very much for giving me this opportunity to take part in the competition organized in the magnificent city of Madrid - the city of Spanish Kings since 1606. In fact in Polish language there is a proverb. We say: “Life as in Madrid” and it means to lead a good and comfortable life. I have to admit that I found this proverb to be truth. The City is charming. Your smile, care and hospitality are outstanding. As in Poland we have only rain and freezing 8 degrees outside, thank you very much Organizers for providing us with this wonderful weather. ;) Yet being serious, thank you very much for creating this very first opportunity for me to take part in the Oratory Competition on behalf of myself and on behalf of the Wroclaw Bar of Legal Advisers I am representing here. INTRODUCTION - FURTHER My name is Jakub Bober and I hold Master of laws diploma from the local University of Wroclaw as well as the University of Ottawa - Master of Laws diploma with concentration in law and technology. Currently I am trainee attorney-at-law in the Bar of Legal Advisers in Wroclaw, Poland. In my presentation, which is going to take just around a few minutes, I am going to talk about the recent judgement of the Grand Chamber of the ECHR as of September 5, 2017 - THE CASE OF BĂRBULESCU v. ROMANIA (Application no. 61496/08). Before I start let me make a short digression: “A Human Rights violation case currently happening in Europe”. At the first sight the topic of the contest today may look straightforward. Yet after a while one can realize that it might be a subject of different interpretations:

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What really shall be understood by “human rights violation case”? Maybe instead of the court judgements the collective situation of immigrants from Syria and other states shall be presented? Or maybe it shall be presented numerous violations of human rights suffered by Polish minority living in Belarus which, in fact, is not the party to the European Convention on Human Rights?

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What really means “current”? Is the case that was decided last year - June 2016 - the case

• f Huseyn Abu Zubayda (better known as CIA secret detention sites on Polish territory the

current case? Instead of asking myself numerous questions I have decided to present and discuss “the case of Big Brother”…. MAIN BODY Exactly - the case of Big Brother! As many of you know the country of my origin - Poland - until the inception of the “Solidarity movement” and first partially free elections in July 1989 was called to be one of the “Big Brother”

• countries. The collocation - “Big Brother” was not only the symbol of influence of soviet union but

also an equivalent of surveillance. The one on mass scale and imposed by the communist system. But hey! Today, in this building in Spain, in Madrid, we are part of the modern Big Brother!!! And arguably it is even worst.

We all possess cell phones, tablets, computers that constantly collect data about ourselves! As Eli Preisner - the author of the book “Filter bubble”, said once that as we enter the internet we simultaneously enter a filter bubble. It means that are not only under constant surveillance but also important decision influencing our lives are taken, obviously based on our preferences, not by people but by algorithms. Is there any safe? Does a shelter against the Big Brother exist? Are we safe somewhere? Are employers the new Big Brothers? Subsequently, do we have the right to keep our e-mails or electronic correspondence at work private? Do we have the reasonable expectation of privacy at work? Let me tell you this story: The case originated in an application (no. 61496/08) against Romania lodged to the European Court of Human Rights under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Bogdan Mihai Bărbulescu (“the applicant”), on 15 December 2008. Once national procedures has been exhausted Mr. Barbulescu was left with nothing but to apply to the ECHR.

• Mr. Barbulescu was a sales engineer working for a private company in Romania. The company in

question prohibited the use of its equipment (including the internet) for personal use – a policy it robustly enforced with dismissals for transgressors – facts which Mr. Barbulescu was made aware

• f. The employer’s internal regulations prohibited the use of company resources by employees in

the following terms: Any disturbance of order and discipline on company premises shall be strictly forbidden, in particular: ... – ... personal use of computers, photocopiers, telephones or telex or fax machines At his employer’s request, Mr. Barbulescu opened a Yahoo Messenger Account in order to communicate with Company’s customers. He was subsequently told that this account had been monitored, revealing that it had been used for personal purposes. When Mr. Barbulescu denied this claim, he was presented with a transcript of the content of his

• messages. These included exchanges with his brother and his fiancé, some of which were of an

intimate nature. When the transcript was revealed the applicant informed the employer in writing that in his view it had committed a criminal offence, namely breaching the secrecy of correspondence. As a consequence Mr. Barbulescu was fired. The employment agreement was terminated. He challenged his dismissal in the domestic courts alleging that it breached his right to private life. Those claims were dismissed and subsequently Mr. Barbulescu brought his case to Strasbourg. The applicant complained, in particular, that his employer’s decision to terminate his contract had been based on a breach of his right to respect for his private life and correspondence as enshrined in Article 8 of the Convention and that the domestic courts had failed to comply with their obligation to protect that right. In its judgment of 12 January 2016 the Chamber held by 6 votes to 1 dissenting, firstly, that Article 8 of the Convention was applicable in the present case. Referring to the concept of reasonable expectation of privacy, it found that the present case differed from Copland and Halford

• v. the United Kingdom in that the applicant’s employer’s internal regulations in the present case

strictly prohibited employees from using company computers and resources for personal purposes. The Chamber had regard to the nature of the applicant’s communications and the fact that a

transcript of them had been used as evidence in the domestic court proceedings, and concluded that the applicant’s right to respect for his “private life” and “correspondence” was at stake. The case was dismissed by 6 votes to 1. There was only one Portuguese judge Pinto De Albuquerque who dissented from the judgement. Most importantly he argued that: “The majority accept that there has been an interference with the applicant’s right to respect for private life and correspondence within the meaning of Article 8 of the European Convention

• n Human Rights (“the Convention”), but conclude that there has been no violation of this

Article, since the employer’s monitoring was limited in scope and proportionate. I share the majority’s starting point, but I disagree with their conclusion.” Furthermore he highlighted argument overlooked by other judges sitting in the panel:

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No internal policy on Internet use;

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Sensitive nature of information accessed by the employer;

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The lack of necessity of employers interference. Subsequently the case was appealed to Grand Chamber being composed of 17 judges and was decided on September 5 this year. The Court had to strike the proper balance between two main interests interest at stake: 1. “Internet surveillance in the workplace is not at the employer’s discretionary power yet the employer is entitled to monitor employees.” Nevertheless the employer shall be given the right to control his/her employees. In a time when technology has blurred the diving line between work life and private life, and some employers allow the use of company-owned equipment for employees’ personal purposes, others allow employees to use their own equipment for work-related matters. VS. 2. “Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace.” Also in para 61 the Court highlighted that: New technologies make prying into the employee’s private life both easier for the employer and harder for the employee to detect, the risk being aggravated by the connatural inequality of the employment relationship. Final Judgement: “Employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.” In other words:

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Employee possesses reasonable expectation of privacy at work, in particular to secrecy of correspondence, however,

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The employee’s right is restricted by employer’s right to reasonable surveillance of the its employees.

It is hard to strike a proper balance in all judgements when technology is involved. The panel of judges in Barbulescu case was fairly divided: 11 votes to 6 dissenting. FINAL PART Consequences of the judgement:

• 1. Judgment of the ECHR is important for employers as well as for employees. The Court

stressed that the employee’s correspondence is secret as any other type of correspondence and the Convention does not distinguish between private and work-related correspondence. Reasonable expectation of privacy at work! And I the same Reasonable right to monitor employees! However, an employee is entitled to reasonable expectation that, unless otherwise agreed with the employer, his / her correspondence, including telephone calls, is confidential.

• 2. The Court specifies the criteria to be applied by the national authorities when

assessing whether the given measure is proportionate to the aim pursued - see para 122

• f the judgement.

Some of them might be presented here:

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Principle of necessity: monitoring must be necessary to achieve a certain aim.

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Principle of purpose specification: data must be collected for specified, explicit and legitimate purposes.

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Principle of transparency: the employer must provide employees with full information about monitoring operations.

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Principle of legitimacy: data-processing operations may only take place for a legitimate purpose.

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Principle of proportionality: personal data being monitored must be relevant and adequate in relation to the specified purpose.

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Principle of security: the employer is required to take all possible security measures to ensure that the data collected are not accessible to third parties.

• 3. Positive obligation of the state to take all possible measures to guarantee the best level of

privacy protection also reading privacy protection of citizens FINAL COMMENT And last but not least, let me be clear with you - human rights are very tangible think and it is all about money. And as a lawyer we all know that it is all about money. The applicant claimed 60.000,00 EUR of pecuniary damages and 200.000,00 non-pecuniary damages. In this case the Court found that there is no causal link between the violation found and the pecuniary damage alleged, and therefore dismisses this claim. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant.

The applicant was left with nothing but satisfaction Fortunately the costs of the legal representation were reimbursed to the lawyers representing him before the ECHR. ;) Thank you for your attention. Should you have any further comments of concerns regarding Barbulescu vs. Romania case please do not hesitate to as any questions during the pause in the lobby.