New technologies and respect for the worker’s privacy in ECHR case law
- Cet article est une traduction de :
- Les nouvelles technologies et le respect de la vie privée du travailleur dans la jurisprudence de la CEDH [fr]
Résumés
Cet article analyse les changements apportés au droit du travail par la mondialisation et la transition numérique au travers, notamment, de leurs conséquences sur des droits fondamentaux, tels que la protection du droit à la vie privée et le respect de la vie privée dans la relation de travail. L’interprétation de l’article 8 de la Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales (ci-après Convention) sera discutée à partir d’une analyse critique de la jurisprudence de la Cour européenne des droits de l’homme (ci-après CEDH). Une attention particulière sera portée à l’identification des éléments de légitimation des activités de vidéosurveillance et de contrôle à distance des travailleurs, ainsi qu’à la réglementation européenne sur le recours à des systèmes d’intelligence artificielle à des mêmes fins.
Entrées d’index
Mots-clés :
transition numérique, relation de travail, contrôle à distance, vidéosurveillance, respect et protection de la vie privée, protection de la confidentialitéKeywords:
digital transition in the employment relationship, remote controls, video-surveillance, respect for the private life, protection of confidentiality, protection of the privacyPlan
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- 1 See P. Ichino, “Le conseguenze dell’innovazione tecnologica sul diritto del lavoro”, Rivista italia (...)
1Following the changes imposed by globalisation and the digital transition, we are seeing a progressive, but increasingly rapid transformation of the underlying elements of employment law in all the major European countries. This is a process that is leading to a questioning of the characteristics of the rules specific to employment law, as well as of the meaning usually attributed to notions such as “subordination”. Indeed, the breakup of the common focus of interest (including the workplace in an establishment run by the employer) generated by the ever more frequent use of digital platforms is having consequences that are impacting not only the structure of the work employment relationship, but also the protection of individual rights. In view of these transformations in the employment relationship, it is now important to rethink the relationship between democracy and rights.1
- 2 G. Santoro-Passarelli, “La funzione del diritto del lavoro”, Rivista italiana di Diritto del Lavoro(...)
- 3 W. Chiaromonte, «La dottrina giuslavoristica francese alla prova dell’intelligenza artificiale», in (...)
2Furthermore, the main characteristics upon which the differentiation between labour law, understood as all the standards of worker protection in connection with the employment relationship, and classic civil law have historically been based have gradually become diminished.2 This has led to a quite sudden - and dangerous - transfer of the employment relationship into the sphere of economic and contractual relations. For confirmation, one simply has to observe the changes made to the legislation on individual dismissals in most European countries. More often than not, these reforms are intended to remove protective measures that favour the worker - considered as a weaker legal subject - to prioritise the protection of economic interests over those of human dignity. The result is a general impression of abandonment of the construction of a law in line with the initial objective of protecting the worker to replace it with mechanisms and solutions aimed more at protecting economic interests.3
3The defence of the freedom and dignity of the individual in connection with their employment relationship and their private life through the protection of personal data are indicative of these developments. In this respect, the invocation of privacy is no longer limited to calling upon the original, limited notion of respect for personal autonomy, but aims rather, in accordance with Article 8 of the European Convention on Human Rights, reiterated by Article 16 of the Treaty on the Functioning of the EU (TFEU), to protect all the aspects of the individual’s private sphere. This has therefore led to the assigning of a specific role of control and intervention to the Italian Data Protection Authority and the authorising of a redistribution of powers from a legal and social point of view.
4The ever more massive use of technological tools is having greater and greater consequences on various different levels. Concerning the protection of workers’ privacy, it must be noted that the ongoing digital revolution is continually transforming the very notion of the “private sphere”, which can no longer be understood as exclusively limited to the circulation of “outgoing” information liable to be used by third parties, but also - and more and more often - extending to the circulation of “incoming” information, which penetrates the private sphere in an extensive number and variety of forms.
5Given its origins, the right to privacy was conceived of as the right of the bourgeois individual to prevent any attempted intrusion by third parties into their private life. The protection has gradually changed as the structure of society has become more complex, until we have arrived at the point where it is asserted as the right of any individual to control their own personal data, in any place and any situation, which enables them to determine their level of participation in social processes, intervention spaces and even the supply of certain goods or services. Faced with this, what are the prospects for protecting workers in the age of the digital transition (I) and what responses are provided in this respect by the European Convention on Human Rights and the Strasbourg Court (II)?
I - Prospects for the protection of workers’ rights in the era of the digital transition
- 4 P. Loi and V. Speziale, «Come cambia il diritto del lavoro nell’economia delle piattaforme. Introdu (...)
6To find adequate solutions, the path currently being followed seems to be that of the adaptation, as far as possible, of the traditional legal frameworks of employment law, in line with the principles applicable in the national systems, with a view to protecting workers without necessarily waiting for or preparing reforms of employment law, which might well turn out to be very quickly obsolete, on the one hand, and difficult to adapt to sudden changes in the labour market, on the other4 (A). More precisely, it is the clarification of the scope of the notion of “remote monitoring” of the worker that is expected of regulation (B).
A - The guidelines framing national and European regulations
- 5 European Parliament resolution of 15 June 2017 on online platforms and the digital single market (2 (...)
7In June 2017, the European Parliament passed two Resolutions5 which noted “the importance of ensuring respect for labour and social rights and the adequate enforcement of existing legislation in order to further foster social security schemes and the quality of employment”.
8The solution therefore resides in the need to accompany the technological revolution with choices of regulation that make it compatible with the requirements of social justice and a balance between opposing interests. Indeed, the question is not that of the replacement of human work by work done by computers and/or robots, but that of the potential weakening of the traditional legal and social references of work in companies, developed in the 21st century and still relevant today, although challenged by the use of big data. This is why the development of an overall set of regulations that goes beyond the rigid boundaries of the national legislations of the different Member States is now more necessary than ever.
9In connection with digital working, numerous difficulties arise, both as far as the very identification of the employer and the worker themselves is concerned and the changes induced by the use of technological tools. These difficulties will concern the identification of the subjects in the relationship and the preservation of fundamental values (freedom, dignity, privacy).
10It should be noted that the multifaceted systems of decomposition of the company make it necessary to determine a criterion for identifying the very person of the employer. To this end, there are those that, in the work done through digital platforms, identify these functions at each organisational stage and with regard to the exercising of the power of control, which typically belongs to the employer. Such a solution seems useful to widening the scope of the subjects to which the employer’s responsibility can be assigned. However, this does not make it possible to eliminate the risk of placing the burden on the worker of having to identify the different subjects liable to exercise the employer’s responsibility, in order to obtain the fulfilment of the obligations and the recognition of the rights linked to the specific function of employer, with undeniable effects on the privacy of individuals.
- 6 A. Perulli, “Lavoro e tecnica al tempo di Uber”, Rivista Giuridica del Lavoro e della Previdenza So (...)
11The problems are no fewer when it comes to the person of the worker. First of all, it is necessary to emphasise the complexity and heterogeneity of the world of the workers who perform their activities exclusively through digital platforms, or in the real economy using digital platforms. This has the effect of making it difficult to understand the work done via applications within the traditional scope of subordinate work.6 On the other hand, the widespread need to provide a more effective system of protection to platform workers is leading to them being classed as salaried employees. In that respect, the simplest solution would consist not of extending all of labour law to platform workers, but rather of granting them basic protection measures by means of an application to “collaborative economy” operators, inventing new, specific protection measures for economically dependent workers.
- 7 S. Mainardi, “Rivoluzione digitale e diritto del lavoro”, Massimario di Giurisprudenza del Lavoro, (...)
12As well as the establishment of a regulatory framework fixed at European level which, as part of the social protection measures linked to the European pillar of social rights, determines the scope and limits of what is referred to as big data within the employment relationship, a fundamental role must be given to collective bargaining, at national or European level, for matters relating to salary protection, union rights, the use of flexible contracts, the protection of workers’ privacy, working hours, the right to disconnect, the measurement of workers’ productivity or the prior identification of instruments and tools with the capacity to select in advance the purposes and accuracy or the personal data used.7
13The changes described above, which over the last decade have impacted the legal systems of the main countries in Western Europe (Italy, France or Spain) through a long series of reforms of their respective legislation, have mainly concerned access to work, atypical contracts and dismissals. However, it is now possible to say that the extraordinary transformations imposed on the employment law system by the emergency generated by the Covid-19 pandemic of 2020 will certainly produce new effects on labour law in most countries.
14In the end, existing employment law is a continuous construction, subject to frequent adjustment and transformations. And yet the biggest challenge to come will be to give employment law in Europe a homogeneous vision of its missions. Such a vision must result from attributing to a regulatory function to labour law thanks to a system of universal protection measures that no-one can waive, for example relating to salaries or health and safety, but also dignity at work, thereby placing the protection of human dignity - and therefore respect for and protection of the worker’s privacy - at the centre of the legal construction instead of economic interests.
15In the current system, the ILO Conventions and in particular those relating to the improvement of rights and levels of social protection, provide for working conditions that are an absolute minimum in relation to the complexity of the economic systems.
16As far as the question of outsourced flexibility is concerned, the EU and the legislations of the main Member States, which are rarely as harmonised as they could or should be, have attempted to limit the consequences of the conversion of industrial processes, by trying to introduce flexicurity measures that increase the level of protection. But the existence of profound differences between employment regulations and the process of harmonising the collection of data requires new protective measures to guarantee the development of the market and the correlative growth of social needs.
17Again from the point of view of the protection of privacy, the entry into force of Regulation (EU) no. 216/679 has enabled these rights to be enshrined as fundamental rights in EU law, identifying a system of functional rules to find a balance between individuals’ privacy, on the one hand, and enterprises’ needs for free circulation of data, on the other.
- 8 F. Santoni, “La privacy nel rapporto di lavoro: dal diritto alla riservatezza alla tutela dei dati (...)
18However, the more and more massive use of technology in the employment relationship and the variety of forms that the monitoring carried out by the employer can take, in particular using tools normally intended for the performance of the work, reveal the need to pay particular attention to electronic democracy and the potential impact of the digital revolution on the employment relationship.8
19Against this background, the protection of the worker’s privacy plays a particularly important role, especially as far as methods of remote monitoring adopted by the employer are concerned.
B - The scope of the notion of “remote monitoring” of the worker
- 9 S. Rodota, Tecnopolitica. La democrazia e le nuove tecnologie della comunicazione, Laterza Editori, (...)
20Before the invasion of technological instruments, the issue was mainly limiting the possibility of carrying out simple “data and information gathering” or conducting “opinion polls” with workers to use the terminology of the Italian Workers’ Statute (Article 4, Law no. 300 of 20/05/1970). Today, due to the presence and impact of new communication technologies, it is necessary to curb the phenomena of “surveillance, evaluation and control” which are directly impacting the freedom of the individual.9
21The objective omnipresence of IT tools of different types and contents in the work environment is posing new problems to the system of sources of employment law. Indeed, simply referring to general principles and values is no longer enough. For example, those of the Charter of Fundamental Rights of the European Union (Articles 7 and 8) represent an essential benchmark for identifying the principles that must inspire the legislation of the Member States of the European Union. But they render indispensable a wider intervention that would enable the identification of a set of regulations common to the law of the different Member States of the European Union on the remote use of IT tools for monitoring purposes in the course of work relations.
- 10 A. Trojsi, «Garante per la protezione dei dati personali», 13/07/2016, no. 303, Rivista Italiana di (...)
22The distinction between, on the one hand, the motivations of the entrepreneur and, on the other, respect for human dignity, cannot, at the current time, be established by a simple admission of the legitimacy of the use of electronic tools in the workplace, but by the method used to acquire data and the intended purpose, without omitting to envisage, however, the potential harm to workers’ rights that can result from the simple acquisition of data, and even from any processing of the data that could impact the personality and freedom of the worker as an individual.10
23However, in case law, the employer’s power of electronic monitoring has been largely recognised, both due to the defensive nature of the monitoring - that is to say, its use as proof of breaches committed by the employee - and when it is based on a set of company rules that expressly set out the conditions and limits of such monitoring.
24On the basis of this reasoning, the notion of “defensive monitoring” has been progressively expanded to include forms of ascertainment of facts relevant only on a disciplinary level, or in connection with the simple defence of the company’s assets, or the else the correct performance of the work.
25At the same time, the employer’s unilateral power to regulate the use of economic resources in the company has been admitted, subjecting the legitimacy of the monitoring to the employer’s informing the workers in advance. The objections of those defending the necessity of protecting the worker’s privacy in the workplace have, in essence, been swept aside by the improvement of company rules specific to monitoring technologies, of which the worker is informed in advance.
- 11 E. Balletti, «I controlli a distanza dei lavoratori dopo il Jobs Act», in F. Santoni, M. Ricci and (...)
26This is also the solution that has been taken up by Italian lawmakers who have, with the so-called Jobs Act, under Legislative Decree no. 151/2015, amended Article 4 of the Workers’ Statute by recognising the legitimacy of remote monitoring “for organisational and production purposes, for safety at work and the protection of the company’s assets”, as long as the monitoring is done using “tools intended to measure the performance of the work done or devices allowing the recording of access and presence.” Thus, it is no longer indispensable to give a justification in advance for the monitoring, or to undertake any procedure to obtain permission from public administrative bodies, to collect workers’ personal data by using all the information acquired “for any purpose linked to the employment relationship”, as long as there is compliance, however, with the legislation in force on the processing of personal data.11
27Among the aspects of privacy protection that attract the most attention and are the subject of interventions by the national and supranational authorities responsible for personal data protection, those related to the professional dimension are particularly important. Surveillance carried out the employer, for example by consulting the company server to see the electronic messages sent or received by the employee, their number, the websites visited and the connection time, could now be considered as established. Monitoring activity is therefore not limited to checking the accomplishment of the work, but also involves moments in the worker’s private life, concerning which protection must be fully guaranteed under the terms of the European Convention on Human Rights.
II - Respect for privacy, fundamental ECHR law
28Article 8 of the European Convention on Human Rights explicitly states that “everyone has the right to respect for his private and family life, his home and his correspondence”, in order to protect the individual against any arbitrary interference by public authorities in their private or family sphere.
- 12 For the interpretation of Article 8 of the European Convention, see A. Sitzia, “I controlli a dista (...)
29The interpretation of this right is quite broad. The protection of private and family life concerns, in fact, the home and correspondence of every person, and only allows interference by a public authority with the exercise of this right if that interference “is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.12 This provision is often invoked by the European Court of Human Rights, which has expanded its scope to include other aspects such as the moral, psychological and physical integrity of the person, as well as the protection of rights linked to personal development.
A - ECHR case law on remote surveillance and video surveillance: from the Bărbulescu v. Romania decision to the Antović and Mirković v. Montenegro case
30Certain ECHR judgments concerning the protection of the worker’s privacy in the workplace concentrate on the pairing consisting, on the one hand, of the assertion of the legitimacy of monitoring and, on the other, by the limits laid down by Article 8 of the European Convention. These judgments have fuelled the Italian debate on Article 4 of the Worker’s Statute and have drawn the attention of the main Member States to the identification of the limits of the implementation of remote monitoring, with regard to the issue of respect for the privacy of the person.
- 13 ECHR, Grand Chamber, 5 September 2017, application no. 61496/08, Barbulescu, in Notiziario di Giuri (...)
- 14 ECHR, Section IV, 12 January 2016, application no. 61496/08, Barbulescu, in Massimario di Giurispud (...)
- 15 A. Pizzoferrato, “Gli effetti del regolamento europeo GDPR sulla disciplina del trattato aziendale (...)
- 16 A. Sitzia, “Personal computer e controlli “tecnologici” del datore di lavoro nella giurisprudenza”, (...)
31In this respect, it is necessary to mention, first of all, the decision of the Grand Chamber of the European Court of Human Rights in the Bărbulescu v. Romania13 case (application no. 61496/08) of 12 January 2016, which, setting aside the decision previously made by the lower court,14 considered that the surveillance exercised by the employer which led to the dismissal of an employee for having used the company’s Yahoo Messenger account for private purposes constituted a breach of Article 8 of the Convention.15 In this case, after a series of checks made by the employer intended to check the correct use of the company’s professional Yahoo Messenger account, a Romanian engineer, a sales manager for a private company, was the subject of disciplinary proceedings, after which he was dismissed. The employee had used the company’s account during his working hours to send private messages to members of his family and his fiancée, containing information about his private life, his health and his sex life.16 In order to prove the use of the messaging account for private purposes, the company, which had expressly formulated a prohibition on the use of company computers for personal purposes and, moreover, had included this prohibition in its internal regulations, which were provided to employees, had put together a substantial file containing transcripts of all the “offending” messages. This decision is noteworthy in that the Grand Chamber of the Court clarifies the position according to which respect for privacy and the confidentiality of correspondence are protected in the workplace, even where restrictions apply, thereby bringing communications made in the workplace within the notions of “private life” and “correspondence” protected by Article 8 of the Convention. According to the judges, the notion of a private life is not confined only to the personal sphere, but includes all the aspects allowing the individual to develop their social identity, including the possibility of having communications with the outside world while they are in the company.
- 17 CEDH, Copland c. Regno Unito di Gran Bretagna, 3 July 2007, application no. 62617/2000, Dir. Inform (...)
32In this sense, communications by electronic mail fall within the notion of correspondence within the meaning of Article 8 of the Convention. Consequently, the employer can only monitor the emails sent by an employee from a company computer for personal purposes “if precise parameters are met, such as prior notification, impossibility of using less intrusive methods, existence of serious grounds leading the company to exercise a form of self-control.” This judgment is also notable insofar as it highlights the importance of having company policies, a point already made by the same Court in the 2007 Copland v. United Kingdom judgment (application no. 62617/2000) defining a framework consisting of criteria for appreciating the legitimacy of the employer’s behaviour.17
33More precisely, according to the Grand Chamber, the national courts should assess:
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whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures;
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the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy, making a distinction between monitoring of the flow of communications and of their content; whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results; the same applies to the spatial limits to the monitoring;
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whether the employer has provided legitimate reasons to justify monitoring the communications;
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whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications;
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the consequences of the monitoring for the employee subjected to it, in particular whether the results were used to achieve the declared aim of the measure;
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- 18 ECHR, Grand Chamber, 5 September 2017, application no. 61496/08.
whether the employee had been provided with adequate safeguards.18
34Lastly, the domestic authorities should ensure that an employee whose communications have been monitored has 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, and thus provide not only a company policy with generic content, but also concrete operational tools that render these guarantees effective.
35The main effect of the Barbulescu v. Romania decision given by the Grand Chamber of the ECHR is therefore to assert the principle according to which the limits described above apply not only to the lawfulness of the processing of personal data, but also to the legitimacy of the employer’s monitoring, so that company rules can only apply if they respect these parameters and guarantee that the employee has adequate means of protection against remote monitoring carried out by the employer, including where it is involuntary.
36The Fifth Section of the ECHR returned to the subject in the Libert v. France case (application no. 588/13) of 22 February 2018 concerning a case of dismissal for using professional computers to store large quantities of pornographic material. The domestic judge had rejected the challenge to the dismissal on the grounds that the files in question were not clearly identified as private. In this case, the Court found that there had been “interference by a public authority”. But, unlike the Barbulescu case brought by a private individual, the complaint was analysed from the angle of the State’s negative obligations, understood as the duty not to interfere in the employee’s private life.
37In this case, the question of whether the files at issue had been clearly identified as personal files was examined in as part of the verification of the proportionality of the interference. In substance, in the Libert case, the Court, after confirming that activities carried out during work can be come under the notion of private life, recognised the employer’s right to check the content of documents because prior notification had been given to this effect, and the employee had not complied with the company’s rules on the classification of documents.
- 19 For a critical approach, see A. Perulli and E. Sychenko, “La Corte Europea dei diritti dell’Uomo pe (...)
38It therefore seems logical to consider that the employer’s prerogatives may vary according to the circumstances and be more or less extensive in terms of monitoring if fundamental rights are substantially compromised, which would have led to a different outcome in the case above. However, the Court revealed in this case how the “interpretation of the right to privacy at work could be very strict and formal when employees commit illegal acts”.19
39The Fifth Section of the Court had already ruled on the issue of video surveillance in the Köpke v. Germany case (application no. 420/07) of 5 October 2010. This case concerned covert video recordings of the behaviour of an employee at her place of work in order to monitor thefts in a supermarket. As the German courts pointed out, the video surveillance was only carried out after losses had been detected during stocktaking and irregularities had been discovered in the accounts of the department in which she worked, raising an arguable suspicion of theft committed by the applicant and another employee, who alone were targeted by the surveillance measure. Furthermore, the measure had been limited to a period of observation of two weeks and covered only the area around the cash desk and accessible to the public, whilst the visual data obtained were processed by a limited number of persons working for the detective agency hired conduct the investigation and used only for the purposes of the procedure. The interference with the applicant’s private life were therefore restricted to what was necessary to achieve the aims pursued by the video surveillance The domestic courts further considered that the employer’s interest in the protection of its property rights could only be effectively safeguarded if it could collect evidence in order to prove the applicant’s criminal conduct in proceedings before the courts. The Court considered that there was nothing to indicate that the domestic authorities failed to strike a fair balance between the applicant’s right to respect for her private life and the employer’s interest in the protection of its property rights.
40The subject of video surveillance was then revisited in the Antović and Mirković v. Montenegro and Lòpez Ribalda v. Spain judgments, the Strasbourg moving towards finding a balance between the legitimacy of remote monitoring and respect for the worker’s privacy.
B - Towards a balance between remote monitoring by video from surveillance and respect for the worker’s privacy: the Antović and Mirković v. Montenegro judgment to the Lòpez Ribalda v. Spain judgment
- 20 ECHR, Radu v. Repubblica di Moldavia, 15 April 2014, application no. 50073/07.
41In the Antović and Mirković v. Montenegro (judgment no. 70838/13) of 18 November 2017, as in the earlier Radu v. Moldova20 case referring to public employment, the Court had already ruled that the simple fact that the work - in this case teaching - takes place in a public place was not enough to exclude the application of Article 8 of the Convention. In the case in point, two university teachers had complained of the decision taken by the University of Montenegro to install video surveillance cameras in the amphitheatres, supposedly to ensure the safety of people and the University’s property: they considered that this was a violation of their right to respect for their private life. The domestic courts rejected the claims for damages, based on the principle that the protection of private life cannot be invoked in connection with behaviour in a public place. In ruling on this application, the Court extended the limits of the scope of Article 8 of the European Convention: it is not because the workplace is a public place, open or exposed to the public, that the protection of the right to a private life of an employee can be limited. Considering in this case that the State’s interference was disproportionate, the Court considered that the stated aims of protecting public safety and the institution’s property were not of such importance that they could justify the restrictive measures adopted by the University, insofar as it could have used other, less invasive, but just as appropriate means, to pursue those aims.
42It was with the López Ribalda v. Spain judgment (applications no. 1874/13 and no. 8567/13) of 9 January 2018 that the Court returned to the protection of the right to a private life in connection with the remote monitoring of the worker, laying down some essential principles which are liable to constitute a final approach of the ECHR on this subject.
43This case concerned the video surveillance covertly set up by the employer to film supermarket cashiers suspected of theft. In the case in point, the recording of the video was followed by the dismissal of the employees accused of the offences, mainly on the basis of the video material obtained. The domestic courts considered that the defensive monitoring was justified. The ECHR, seised with the case by virtue of Article 8 of the European Convention on Human Rights, observed first of all that the Spanish government had claimed that the State was not responsible car, as the acts at issue in the case were carried out by a private company. However, the Court reiterated States’ positive obligation to adopt measures to ensure respect for private life. Consequently, it had to decide whether the State had struck a fair balance between the applicants’ rights and those of the employer: indeed, Article 8 of the Convention imposes on the State not only the negative obligation to prevent any arbitrary interference by the public authority in people’s private lives, but also the positive obligation to adopt any measure necessary to ensure respect for privacy in horizontal inter-subject relations.
44Under Spanish law, persons must be clearly informed of the processing of personal data; furthermore, all the employees had been the subject of monitoring for several weeks and during their working hours. The ECHR considered that in this case the “covert surveillance” had led to a monitoring measure that applied indiscriminately to all of the staff at the store, and was therefore disproportionate in comparison to the aim - legitimate in itself - of protecting the organisational and financial interests of the employer. Consequently, the Court considered that the State defendant, by not sanctioning such a disproportion between the means restricting the workers’ rights and the and the aim pursued, had not met the criterion of weighing the two sides required by Article 8 (2) of the European Convention.
45With the López Ribalda judgment, the Court thus clarified the limits of the scope of the rule by indicating that the notion of “private life” could in fact include activities of a professional nature taking place in the workplace. The Court thus clearly asserted, as regards video surveillance in the workplace, that an employee cannot be deprived of their right to the protection of their private life merely by the fact of being on the company’s premises or using the company’s equipment.
- 21 ECHR, Grand Chamber, 17/10/2019, application no. 1874/13 and no. 8567/13, Rivista Giuridica del Lav (...)
46The most significant aspect of the ECHR’s judgment consists of the establishment of some basic principles constituting the logical and legal basis on which the employer is authorised to use video surveillance equipment in the workplace.21
47Consequently, according to the Court, there is no violation of Article 8 of the Convention in cases where the employer subjects its staff to remote video surveillance measures, since even if no information is provided and the monitoring is therefore covert, the use of such instruments when there is a “justified suspicion” of behaviour that goes against company is intended to sanction illicit behaviour that is damaging to the company’s interests.
48It follows that the decision is without any doubt an important one in terms of its application to domestic law, which nevertheless requires some in-depth reflection by domestic lawmakers on the very notion of “justified suspicion” to avoid it resulting in an abusive interpretation liable to jeopardise the worker’s fundamental right to a private life.
49Although the parameters fixed by the ECHR are indeed the result of an interesting logical path, which allows the identification of situations liable to generate a source of the employer’s responsibility in connection with the determining of the rules in company policy, it is nonetheless necessary that the national systems verify, in practice, whether they are capable of pursuing the objective of protecting opposing interests, without depriving employees of the protective mechanisms that allow a core set of values to be identified that are essential to protect them against invasive measures on the part of companies.
Conclusion
50In the final analysis, the decision of the European Court of Human Rights provides parameters allowing domestic courts to turn towards the determination of criteria for the assessment and identification of the elements involved in balancing the opposing needs of workers and companies.
51Nevertheless, to have a stabilised approach to the means of identifying the limits of video surveillance, it is necessary to establish a clearer normative framework for the guarantee and protection mechanisms, via Community regulations on the use of artificial intelligence systems. This is what seems to emerge from the Commission’s proposal for a Regulation on a European approach for Artificial Intelligence (AI) of 21 April 2021 aiming to guarantee that the AI systems used in the EU are safe, transparent, ethical, impartial and under human control.
Notes
1 See P. Ichino, “Le conseguenze dell’innovazione tecnologica sul diritto del lavoro”, Rivista italiana di Diritto del Lavoro, 2017, 4, I, p. 525.
2 G. Santoro-Passarelli, “La funzione del diritto del lavoro”, Rivista italiana di Diritto del Lavoro, 2018, 3, I, p. 339.
3 W. Chiaromonte, «La dottrina giuslavoristica francese alla prova dell’intelligenza artificiale», in P. Adam, M. Le Friant, Y. Tarasewicz (dir.), Intelligence artificielle, gestion algorithmique du personnel et employment law, Giorn. Dir. Lav. Rel. Ind., 2021, 1, p. 133.
4 P. Loi and V. Speziale, «Come cambia il diritto del lavoro nell’economia delle piattaforme. Introduzione», Rivista Giuridica del Lavoro e della Previdenza Sociale, 2017, 2, p. 171.
5 European Parliament resolution of 15 June 2017 on online platforms and the digital single market (2016/2276(INI); European Parliament resolution of 15 June 2017 on a European Agenda for the collaborative economy (2017/2003(INI).
6 A. Perulli, “Lavoro e tecnica al tempo di Uber”, Rivista Giuridica del Lavoro e della Previdenza Sociale, 2017, no. 2, p. 195.
7 S. Mainardi, “Rivoluzione digitale e diritto del lavoro”, Massimario di Giurisprudenza del Lavoro, 2020, p. 2.
8 F. Santoni, “La privacy nel rapporto di lavoro: dal diritto alla riservatezza alla tutela dei dati personali”, in F. Galgano, P. Tullini (dir.), Tecnologie della comunicazione e riservatezza nel rapporto di lavoro, Cedam, Padova, 2010, p. 25.
9 S. Rodota, Tecnopolitica. La democrazia e le nuove tecnologie della comunicazione, Laterza Editori, Roma-Bari, 2004, p. 161; A. Bellavista, «Sorveglianza sui lavoratori, protezione dei dati personali ed azione collettiva nell’economia digitale», in G. Santoro-Passarelli, Giurista della contemporaneità. Liber amicorum, Giappichelli, Torino, 2018, Vol. II, p. 717.
10 A. Trojsi, «Garante per la protezione dei dati personali», 13/07/2016, no. 303, Rivista Italiana di Diritto del Lavoro, 2017, p. 2, II, p. 310.
11 E. Balletti, «I controlli a distanza dei lavoratori dopo il Jobs Act», in F. Santoni, M. Ricci and R. Santucci (dir.), Il diritto del lavoro all’epoca del Jobs Act, Napoli, 2016, p. 37; A. Bellavista, «Il nuovo art. 4 dello Statuto dei lavoratori», in G. Zilio Grandi and M. Biasi (dir.), Commentario breve alla riforma “Jobs Act”, Cedam, Padova, 2016, 725; R. Del Punta, «La nuova disciplina sui controlli a distanza sul lavoro (art. 23, d. lgs. 151/2015)», Rivista Italiana di Diritto del Lavoro, 2016, 1, I, p. 77; V. Nuzzo, La protezione dei lavoratori dai controlli impersonali, Napoli, 2018; G. Proia, «Trattamento dei dati personali, rapporto di lavoro e l’impatto della nuova disciplina dei controlli a distanza», Rivista Italiana di Diritto del Lavoro, 2016, 4, I, p. 547.
12 For the interpretation of Article 8 of the European Convention, see A. Sitzia, “I controlli a distanza dopo il Jobs Act e la Raccomandazione R(2015)5 del Consiglio d’Europa”, Il lavoro nella giurisprudenza, 2015, no. 7, p. 671.
13 ECHR, Grand Chamber, 5 September 2017, application no. 61496/08, Barbulescu, in Notiziario di Giurisprudenza del Lavoro, 2017, p. 534.
14 ECHR, Section IV, 12 January 2016, application no. 61496/08, Barbulescu, in Massimario di Giurispudenza del Lavoro, 2016, p. 209. For a commentary, see G. Consonni, “Il caso Barbulescu c. Romania e il potere di controllo a distanza dopo il Jobs Act: normativa europea e italiana a confronto”, Diritto del Lavoro e Relazioni industriali, 2016, 4, p. 1171.
15 A. Pizzoferrato, “Gli effetti del regolamento europeo GDPR sulla disciplina del trattato aziendale dei dati del lavoratore”, Argomenti di Diritto del Lavoro, 2018, 4-5, p. 871.
16 A. Sitzia, “Personal computer e controlli “tecnologici” del datore di lavoro nella giurisprudenza”, Argomenti di Diritto del Lavoro, 2017, vol. 3, p. 808.
17 CEDH, Copland c. Regno Unito di Gran Bretagna, 3 July 2007, application no. 62617/2000, Dir. Informazione e informatica, 2008, p. 201.
18 ECHR, Grand Chamber, 5 September 2017, application no. 61496/08.
19 For a critical approach, see A. Perulli and E. Sychenko, “La Corte Europea dei diritti dell’Uomo periodo gennaio-dicembre 2019”, Rivista Giuridica del Lavoro e della Previdenza Sociale, 2020, 2, p. 64.
20 ECHR, Radu v. Repubblica di Moldavia, 15 April 2014, application no. 50073/07.
21 ECHR, Grand Chamber, 17/10/2019, application no. 1874/13 and no. 8567/13, Rivista Giuridica del Lavoro e della Previdenza sociale, 2020, 2, II, 237, note by M. D’Aponte, I controlli a distanza e la videosorveglianza nei luoghi di lavoro tra diritto nazionale e giurisprudenza della CEDU ; A. Ciriello and F. Ariante, “Videosorveglianza “occulta” sul luogo di lavoro: il caso Lòpez Ribalda e altri c. Spagna, e la giurisprudenza della Corte Europea dei Diritti dell’Uomo”, Lavoro, Diritto, Europa., 2019, p. 1.
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Marcello D’Aponte, « New technologies and respect for the worker’s privacy in ECHR case law », Revue de droit comparé du travail et de la sécurité sociale, 4 | 2021, 192-203.
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Marcello D’Aponte, « New technologies and respect for the worker’s privacy in ECHR case law », Revue de droit comparé du travail et de la sécurité sociale [En ligne], 4 | 2021, mis en ligne le 31 décembre 2022, consulté le 19 juin 2025. URL : http://journals.openedition.org/rdctss/2718 ; DOI : https://doi.org/10.4000/rdctss.2718
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