Are employers allowed to monitor which websites their employees visit on their work computers?
Under German law, this is only possible within very narrow limits.
It is clear that hidden spying programs may not be used in principle.
The European Court of Human Rights (ECtHR) took a similar view in a recent case and referred to the relevant data protection limits of the European Convention on Human Rights (ECHR).

Romanian judges allow surveillance

What happened?
A sales engineer was employed by a private employer in Romania.
As part of his employment relationship, he used a Yahoo Messenger account at the behest of his employer.
He was only supposed to use it to handle direct inquiries from customers.
However, the Romanian employer also used the account to “chat” with his brother and his fiancée.
This was despite the fact that private use had previously been expressly prohibited by the employer.

After the employer found out about the private use, he terminated the employment relationship.
The employee defended himself and denied having used the messenger privately.
The employer then submitted a 45-page chat transcript of the private communication from just a single week.
Explosive: The transcript contained, among other things, particularly protected personal data of the employee (see Art. 9 GDPR).

The employee did not want to accept this and took legal action.
He was of the opinion that the employer should not have monitored and analyzed the communication at all, and certainly should not have based his dismissal on it.
However, the lawsuit was unsuccessful before the national Romanian courts.

ECtHR restricts surveillance in the workplace

The 17-member Grand Chamber of the ECtHR did not agree with this.
It saw the surveillance as a violation of the right to respect for private life and correspondence (Art. 8 ECHR).
The ECtHR had to weigh up the employer’s interest in surveillance against the employee’s interest in respect for his private life.
In its decision, the ECtHR lists a number of criteria that must be taken into account when weighing up these interests.

In particular, the Court criticized the fact that the Romanian national courts had not examined whether the employee had been informed by his employer about the possibility and nature of surveillance, as well as its extent.
The courts had also so far failed to clarify whether the surveillance was based on a justified reason or not.
Furthermore, according to the Strasbourg judges, the previous courts had not considered a milder method of surveillance.

Private internet use at work – dismissal often disproportionate

In the context of these requirements, the national courts should have assessed and taken into account the severity of the interference with Art. 8 ECHR and the consequence of the surveillance – in this case the dismissal.
As they did not do so, the ECtHR has now awarded the employer compensation in the amount of EUR 1,365.

The judgment only applies directly to the specific case.
National courts are not directly bound by the case law of the ECtHR.
However, they will probably be guided by it.
Otherwise, there is a risk that the Federal Republic of Germany will also have to pay compensation.

Legality of the termination is always an assessment of the individual case

More and more employees are working digitally networked.
This offers employers almost limitless opportunities to monitor their employees.
To a certain extent, this is also necessary.
Otherwise, they would not be able to check whether employees are performing their contractual duties.
However, limits must be set to monitoring because it always involves personal information about people.
The limits are still far from being defined and will probably shift again and again.

The issue provides plenty of material for extensive legal discussion.
For judicial practice, this means that the extent to which surveillance must be restricted always depends on the circumstances of the individual case.
Unfortunately, in many cases it will not be possible to predict with certainty how a court decision will turn out.
Only professional advice and a lot of experience can help here.