BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

15 Right to Privacy vs. Employer’s Big Brother Practises

Martin Štefko 1

1. Introduction The European Court of Human Rights (ECtHR) decision Bărbulescu v. Romania (61496/08) unreported 12 January 2016 and overruled by the Grand Chamber decision of 5 September 2017 has raised important questions as to the boundaries of the employer-employee relationship. 2 Although social media can be a valuable tool for businesses, 3 it also causes serious problems in the workplace. The collision between privacy and employer profit was inevitable. One spends more than a third of a day at the workplace; it is understandable that during this time, but especially during breaks, one has to deal with private or family matters. 4 These days, most people who are of working age have some kind of online presence, whether it takes the form of a personal Twitter account, MySpace, LinkedIn account, Facebook page, or posted comments and reviews on products, news articles, company websites, or other people’s social media pages. 5 Another example is online communication. With the prevalence of social media, it is becoming harder and harder to separate personal and professional lives. Almost everything shared online, even privately, will be public. Problems occur when employees abuse work internet access for personal use during work hours, like in Bărbulescu. Mr Bogdan Mihai Bărbulescu exchanged five short messages with his fiancée on 12 July 2007 using a personal Yahoo Messenger account. He was also communicating with his brother in the same period. 6 The messages concerned health problems and sex life. 1 This chapter was written thanks to financial support given to the Charles University, Faculty of Law through the Program Research Centre for Human Rights (UNCE). M. Štefko also works at Kocián Šolc Balaštík Law Firm. 2 Compare MATEJKA, J. K oprávnění zaměstnavatele kontrolovat práci zaměstnance pomocí moderních technologií (The right on the part of the employer to monitor employee work using modern devices and technology). 5 Právo a zaměstnání , 2003, pp. 7-16. 3 A benefit of social media in the workplace is that it can be utilised as a public relations tool for companies. It allows a measure of company transparency through posts, blogs, and pictures and makes it easier for the average consumer to relate to the company. Companies can use social media to gather mailing lists, distribute sale and special offer information, showcase product pictures, and post positive media reviews. Using social media for business is a very inexpensive, often free, way to promote it to a wide audience. 4 See Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 57, ECHR 2012, and Benediksdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009. 5 Social media include various online technology tools that enable people to communicate easily via the internet to share information and resources. These tools can encompass text, audio, video, images, podcasts, and other multimedia communications. 6 See the case Bărbulescu v. Romania (61496/08) unreported 12 January 2016 (ECHR), marginal number 7 of the judgment.

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