The examination of the already established regulation in the field of Internet and e-mail monitoring can constitute the basis for the further examination of the main subject. This is because of the similarities between the Internet/e-mail and SNSs: as SNSs are Internet based platforms, they allow the user to “surf” on them (like on the Internet); and they also allow the employee to communicate with other users (like in the case of e-mail). Regulating the personal use of the Internet and e-mail was already addressed by regulations: detailed rules were elaborated both at (§1) the international level (amongst which focus will be put on the European regime) and at (§2) the national level.
§1. Outlook to European law
Under European law, attention should be paid especially to documents issued by the EU’s WP29, and by the CoE’s ECtHR. The WP29’s documents provide useful and detailed guidance to Member States, while the ECtHR recently addressed the question of employee monitoring, putting this already existing phenomenon into a new perspective. Besides, contracting parties, such as France or Hungary are also obliged to take into consideration the ECtHR’s decisions both during legislation and the application of law.1334 Therefore the documents of the WP29 and the ECtHR’s decisions are of high importance in relation to the national regulation (and monitoring discussed in detail in Chapter 2) of SNS use at the expense of working hours.
(A) EU perspective: the WP29’s documents
The WP29 expressed in the Working document on the surveillance of electronic communications in the workplace, already presented in Part I, that it is up to the employer
1333 ECtHR: Niemietz v. Germany, application no. 13710/88, 1992. par. 29.
1334 Rózsavölgyi 2018. p. 47.
to decide whether he/she allows the personal use of the Internet and if yes, to what extent.1335 However, the working document does not address the question whether a complete ban is possible, it only adds, without providing legal arguments, that a blanket ban seems to be impractical and unrealistic, as the Internet has gained a huge importance even during work.1336
Although the WP29 mostly deals with monitoring and the extent of prohibition/
regulation, in its Opinion 2/2017 on data processing at work the WP29 explicitly refers to employees’ “legitimate right to use work facilities for some private usage”.1337 When stating that, the WP29 referred to the ECtHR’s Halford case1338 and Bărbulescu case.1339 However, according to my opinion, these references do not truly show the existence or the content of employees’ right to use the employer’s equipment for personal use, as the formulation of their reasoning rather suggests that it is only ensured that the use of such devices by employees for personal purposes might be covered by Article 8 of the ECHR.
The WP29’s latter conclusion might be more crystallized through Paul De Hert’s and Hans Lammerant’s study relating to European workplace privacy/data protection, which referred to the ECtHR case law:1340 therefore this study might help more to better understand employees’ “right to private usage”. In the study they pointed out that employees’ have their rights even within the workplace, meaning that although the existence of the employer’s right to decide how his/her equipment can be used (and to monitor compliance) is not questioned, it is limited not only by the employees’ right to privacy (including the protection of communication), but also by their right to communication. This results in the fact that the employer cannot prohibit all private communication. Although he/she can prohibit the privative use of certain telecommunication means, this should not mean that employees can be left without any alternative to communicate.1341
(B) CoE: the ECtHR’s case law
The ECtHR’s case law in the field of monitoring employees’ use of the employer’s equipment (such as telephone, the Internet, e-mail)1342 has not addressed the extent to which personal use can be prohibited (whether the employer has the possibility to ban it completely), it rather focused on the existence of the right to privacy, which is a separate issue and will be discussed in relation to monitoring.1343 However, cases such as the Bărbulescu v. Romania
1335 WP29: Working document on the surveillance of electronic communications in the workplace, 2002. p. 24.
1336 WP29: Working document on the surveillance of electronic communications in the workplace, 2002. p. 24.
1337 WP29: Opinion 2/2017. p. 14.
1338 “telephone calls made from business premises as well as from the home may be covered by the notions of
‘private life’ and ‘correspondence’ within the meaning of Article 8 paragraph 1” ECtHR: Halford v. the United Kingdom, application no. 20605/92, 1997. par. 44.
1339 Although in a reference to the 2016 judgement and not to the 2017 Grand Chamber judgement. They referred to the ECtHR stating that the employer can only monitor the use to a limited and proportionate extent.
1340 Notably to the case of Halford and Copland.
1341 De Hert – Lammerant 2013. p. 53.
1342 E.g. Halford v. the United Kingdom, Copland v. the United Kingdom
1343 Although in the Copland case the ECtHR remarked in par. 42. that “[t]he applicant in the present case had been given no warning that her calls would be liable to monitoring, therefore she had a reasonable expectation as to the privacy of calls made from her work telephone”, implying that unless given prior notification, the employee can reasonably think that the equipment can be used for personal purposes as well. (Rózsavölgyi 2018. p. 43.)
(2017) directly address the question, and the Libert v. France case (2018) also contains some important observations.
(a) Case of Bărbulescu v. Romania
The Bărbulescu v. Romania (2017) case can serve as an important starting point when it comes to both regulating and monitoring the personal use of SNSs. The applicant, Mr.
Bărbulescu was dismissed for using the Internet and a Yahoo account for private purposes against the prohibition of the employer – also, the account was created at the initiative of the employer. The employer found this out by monitoring the use of the equipment. Although Mr. Bărbulescu was informed that the personal use if IT equipment was prohibited, he was not informed as concerns the details of the implementation of the monitoring which, as it turned out, registered all content of his communication for a certain period.
Besides elaborating the rules relating to monitoring,1344 the decision is also significant for what it stated on social private life. In this case the ECtHR acknowledged the existence of “social private life” and ruled that “[…] an employer’s instructions cannot reduce private social life in the workplace to zero.”1345 In this context private social life means the possibility for the individual to develop his/her social identity,1346 and the ECtHR noted that instant messaging services constitute one form of leading a private social life.1347 The ECtHR also stated that restrictions on an individual’s professional life may fall within Article 8 in the case that they have “repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others.”1348 Even in the workplace, respect for private life and for the privacy of correspondence continues to exist, although it may be restricted to a necessary extent.1349 Thus, the complete ban of personal communication seems to restrict the private social life of employees to an unreasonable extent.
(b) Case of Libert v. France
Even though it mainly relates to the storage of personal files on the employer’s computer, the Libert v. France (2018) case1350 contains some important observations. The case related to the opening of personal files stored on a work computer. The applicant, employee of the French national railway company (SNCF), was dismissed after the seizure of his work computer revealed that he stored a considerable number of pornographic files and forged documents. The applicant argued that the employer violated Article 8, by accessing those files in his absence.
In its judgement the ECtHR recalled that the employer has the right to ensure that employees use the equipment provided by him/her for executing their work in compliance with their contractual obligations and applicable regulation.1351 The employee’s files identified
1344 Costes 2017. p. 35.
1345 ECtHR: Bărbulescu v. Romania, application no. 61496/08, 2017. par. 80.
1346 ECtHR: Bărbulescu v. Romania, application no. 61496/08, 2017. par. 70.
1347 Colonna – Renaux-Personnic 2017. p. 2. (Page number referring to the online version of the article downloaded from: https://www.gazette-du-palais.fr)
1348 ECtHR: Bărbulescu v. Romania, application no. 61496/08, 2017. par. 71.
1349 ECtHR: Bărbulescu v. Romania, application no. 61496/08, 2017. par. 80.
1350 ECtHR: Libert v. France, application no. 588/13, 2018
1351 ECtHR: Libert v. France, application no. 588/13, 2018. par. 46.
as personal receive more protection, as according to French law they can only be opened if there is a risk or a particular event and in the presence of the employee or if he/she has been properly notified of it – contrary to files presumed to be of professional nature.1352 The ECtHR confirmed the principle that the employee is entitled to the right to respect for private life even within the workplace, and that files obviously identified as personal, stored on the computer provided by the employer for work purposes, might pertain to the private life of the employee.1353 Although the decision does not mention a right to use the employer’s equipment for personal purposes, through providing protection to the personal files stored on work computers, certain tolerance is manifested, suggesting that a complete ban of personal use would not be feasible.1354
§2. Regulation at the national level: France and Hungary
Besides the regional level, detailed rules were elaborated at the national level as well, including French and Hungarian law. When assessing the legitimacy of a complete ban of personal use in the French and the Hungarian system, first (A) the fundaments of protecting employees’ personal lives will be discussed mostly through presenting the labour codes and scholars’ opinion on the subject. Then (B) the DPA’s position will be examined. Finally, (C) relevant case law will be examined, with the aim of tracing the line between abusive personal use, and personal use that should be tolerated by the employer1355 – thereby determining the possibility to apply legal consequences against employees who use the Internet/e-mail/SNSs for personal purposes during working hours.
(A) Private/personal life at work
The FLC contains no direct provision aiming to regulate the use of the employer’s equipment and its monitoring. However, an important principle, namely the respect of the employee’s right to respect for private life within the workplace (during the use of the company’s equipment) was established by the jurisprudence, which serves as a basis for the further analysis of the relevant rules. In France, the Court of Cassation’s landmark1356 Nikon decision1357 must be first mentioned.1358 The case related to an employee of the Nikon France Society, who was dismissed for serious misconduct particularly for using the company’s equipment for personal purposes – which was provided for him for professional purposes.
1352 Cass. soc., 17 mai 2005, N° 03-40017
1353 ECtHR: Libert v. France, application no. 588/13, 2018. par. 25.
1354 On the Libert case see more in: Sipka – Zaccaria 2018.; Marchadier 2018.; Nasom-Tissandier 2018.
1355 Márton Leó Zaccaria observed the employees’ increasing possibilities due to technological development:
today employees often feel limited in their rights when the employer wants to restrict or prohibit such personal use, while even before the proliferation of ICT and SNSs it was not an established practice that employees spend their working hours writing letters to their friends. Source: Zaccaria 2016. p. 16.
1356 Dupuis 2001. p. 5. (Page number referring to the online version of the article downloaded from: https://
lamyline-lamy-fr)
1357 Cass. soc., 2 octobre 2001, n° 99-42.942
1358 Although it relates to case law, due to the high importance of the Nikon case, it will be discussed in part (A) instead of part (C).
The Court of Cassation – which granted employees an extremely (even too) favourable position1359 – affirmed that the employee has the right to respect for private life, especially to the secrecy of correspondence, even during working hours, at the workplace.1360
The Court of Cassation held that that “the employee is entitled, even during work hours and at his/her workplace, to have the intimacy of his/her private life respected; that this implies in particular the secrecy of correspondence; that the employer may not therefore, without violating this fundamental freedom, examine personal e-mails sent and received by an employee through a computer provided as a work tool, and this applies even if the employer has forbidden the non-professional use of the computer[.]” Therefore, the Court of Cassation admitted the existence of an autonomous sphere reserved for the intimacies of private life, which must be respected even if the employer has prohibited personal use.
However, through referring to Article L. 1121-1 of the FLC,1361 the decision maintains the possibility of limiting these rights, within the borders set by legislation.1362 The essence of the decision is based on the protection of the employee’s private life within the workplace.1363 However, recognizing such protection does not mean that the employer cannot ban or sanction abusive personal use.1364
Thus, the Court of Cassation questioned the strict separation of professional and personal life, through acknowledging the respect of private life within the workplace.1365 The decision had a great impact: while it was recognized that it made a huge step in recognizing employees’ right to respect to private life within the workplace,1366 it was also pointed out that potential abuses on the part of the employees might also take place.1367 The decision might seem paradoxical insomuch as it put employers in a difficult position as, although they could order employees not to use equipment for private purposes, they were not allowed to lawfully open private letters, even if they violated the employer’s orders.1368 Later on, this principle became more nuanced through the adoption and application of the previously mentioned presumption of professional character of communication.1369 Even though the Nikon decision did not address whether employees’ have the right to use the employer’s equipment for personal purposes, it afforded protection to personal use, even if it took place contrary to the employer’s internal regulation.
As regards the regulation of the personal use of the Internet and e-mails, the starting point is that as Internet connection and e-mails are perceived as a work tool necessary for the execution of work, the employer can regulate and control their use.1370 However, according to the majority opinion, the total prohibition of the personal use of the Internet and
1359 Gautier 2001. p. 3150.
1360 Kocher 2013. p. 129.
1361 Back then Article L. 120-2 of the FLC.
1362 Kocher 2013. p. 132.
1363 Gautier 2001. p. 3149. Its reasoning can be reduced to the following syllogism: everyone has the right to respect for private life, and more precisely to the secrecy of correspondence; private life can take place within the workplace; as a result, opening a communication addressed to the employee violates the employee’s rights.
1364 Rapport de la Cour de Cassation 2001: A. Contrat de travail 1. Exécution.
1365 Lyon-Caen 2001. p. 10.
1366 According to Jean Hauser, if private life flows into the workplace, it also raises the question of whether the work can flow into the private life of the employee. Hauser 2002. p. 72.
1367 Kocher 2013. p. 130.
1368 Vigneau 2002. p. 357.
1369 This question will be further addressed in Section 2.
1370 Féral-Schuhl 2018. p. 394.
e-mail would be considered illegitimate, as such a prohibition would be inconsistent with the principle of proportionality laid down in Article L1121-1 of the FLC.1371, 1372 Personal use to a reasonable extent, for legitimate purposes such as urgent personal communication should be tolerated.1373
Jean-Emmanuel Ray expresses that even though in theory the employer is entitled to completely ban the personal use, in reality the situation is more nuanced, as in practice the enforcement of such a ban is not feasible. As in the 21st century ICT are part of everyday life, it would be disproportionate to sanction an employee for conducting simple, everyday activities such as for calling a family member in an urgent situation, or for buying plane tickets for his/her holiday during the work pause – if the activity did not constitute abuse.1374 Today, these simple everyday activities are often conducted through different SNSs. Jean Louis Denier expressed a similar opinion in 2003, arguing that although no legal constraint of providing “private” use of company equipment weighs on the employer, other factors, especially the blurred boundaries of professional and personal life make it more realistic to tolerate a certain personal use.1375 Then, the next step is to define the limits of tolerable personal use – which will be mostly curved out by the jurisprudence of French courts.
In Hungary, when assessing whether the employee committed misconduct, the starting point is that employers have the discretional right to decide whether they allow the personal use of the Internet or not.1376 This standpoint was further nuanced by the amendment of the HLC in 2019, explicitly determining at the statutory level that unless agreed otherwise, the employee should use the work equipment exclusively for professional purposes.1377 Prior to the amendment, the HLC stated that the employee’s private life cannot be subject to monitoring: instead of such a declaration (especially with regard to the fact that other acts ensure the protection of the private life of the individual) emphasis is put on the employee being able to use work equipment solely for professional purposes.1378
Such a formulation suggests that a complete ban of personal use is possible. As regards SNSs, according to the Commentary of the HLC, the employer can prohibit employees using SNSs during working hours.1379 Such a complete ban seems feasible, even accessing sites from the employees’ own device can be prohibited.1380 This position was already supported prior to the amendment by a number of scholars – although they usually added that despite the possibility of a complete ban, the employer should consider tolerating a certain use.
They usually started their analysis by differentiating between whether the employer has authorized personal use or not, implying that it is his/her right to decide whether personal use is allowed. According to Janka Németh, the employer can choose from among three
1371 Grangé – Froger 2003. p. 216.
1372 However, the contrary was expressed by Paul-Henri Antonmattei, who was of the opinion that the complete ban of non-professional use seems legally justified, as the employee has the right to respect to his/her personal life at the workplace, and not the right to personal life. Antonmattei 2002. p. 39.
1373 Grynbaum – Le Goffic – Morlet-Haïdara 2014. pp. 111–112.
1374 Ray 2001a. pp. 95–97.
1375 Denier 2003. p. 32.
1376 Berke – Kiss 2014. p. 62.
1377 Subsection (2) of Section 11/A of the HLC
1378 T/4479. számú törvényjavaslat az Európai Unió adatvédelmi reformjának végrehajtása érdekében szükséges törvénymódosításokról, 2019. p. 102.
1379 Berke – Kiss 2014. p. 62.
1380 Kun 2013. p. 13.
scenarios: banning the use of the Internet completely,1381 only banning the personal use of the Internet or not placing restrictions on the employees’ use of the Internet.1382, 1383 Then, the scale of monitoring is influenced by which scenario was chosen by the employer.1384 It is also important to consider the period when the banned activity takes place: during periods when the employee is not busy, or at the direct expense of his/her obligations (e.g.
a salesperson ignoring customers and surfing on Facebook).1385
Gábor Kártyás, Rita Répáczki and Gábor Takács add further nuances to this position and note that the employer is entitled to completely prohibit the personal use during working hours: it is up to him/her to decide whether personal use is allowed and to what extent.
However, they also note that in most of the jobs – jobs which do not require constant
However, they also note that in most of the jobs – jobs which do not require constant