THE RIGHT TO PRIVACY IN EMPLOYMENT AND ITS PROTECTION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Abstract

One of the basic, endogenous features attributed to labour law is its dynamism, ie. the ability to
adapt to current socio-economic changes, which, among other factors, are usually driven by
technical and technological progress. In this regard, the role of digitalization in the world of work
is of great importance. In circumstances where the prerogatives of employers to supervise and
control the work process not only did not fade but further deepened bearing in mind the
sophisticated methods of monitoring, surveillance and control, the privacy of the employee is
exposed to serious threats that question its existence. Modern information and communication
technologies and "smart" devices enable employers not only to resort to "ordinary" methods of
monitoring and surveillance such as reading employees' private e-mail but also to more
sophisticated ones, such as installing an application on the devices used by employees that can
track their locations twenty-four hours a day, biological devices to monitor their metabolism, etc.¹ Given the fact that employees are increasingly disclosing their personal information and
expressing their views and opinions on social media, employers have an additional "channel" for
monitoring and supervision. Although certain methods and techniques of monitoring and
surveillance used by employers may act intrusive to the privacy of employees, employers often
have a legitimate interest in applying such methods and techniques. Hence, it becomes more than
obvious that the employee's right to privacy in the context of employment and its balance with the
legitimate interest of the employer to monitor and supervise business operations, is a fluid right
which is subject to different interpretations.
The right to privacy has the legal status of a fundamental human right. The protection of the right
to privacy is regulated by several UN human rights instruments. ² The genealogy of the right to privacy in European organizations (Council of Europe and the European Union) dates back to the
adoption of the Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights) of 1950. The Council of Europe later adopted another
significant legal instrument for the protection of privacy, the adoption of which corresponds to the
early stages of the development of information and communication technologies, and as a
consequence, to the frequent risks of personal data misuse. It is the Convention for the Protection
of Individuals with regard to Automatic Processing of Personal Data of 1981, which establishes
the basic principles for the collection, storage and use of personal data and which lays the
foundations for the adoption of the Recommendation on the Protection of Personal Data Used for
Employment Purposes of 2015. ³ The right to privacy protection, including the right to protection
of personal data is subject to regulation in other legal instruments adopted by the European Union.
In that regard, legislative acts which are worthy of a mentioning are Directive 95/46 on the
Protection of individuals with regard to the processing of personal data and on the free movement
of such data of the European Parliament and the Council of EU of 1995, Directive 2002/58/EC on
Privacy and Electronic Communication of 2002, as well as the Charter of Fundamental Rights of
the European Union (which for the first time, consolidates human rights including the right to
privacy in one document, regardless of whether such rights are treated as civil and political or
economic, social and cultural rights) and the Treaty on the Functioning of the European Union of
Lisbon of 2007 (which regulates the right to personal data protection in its Article 16). To the
previous "list" of legal instruments, most of which are legally binding, can also be added the
International Labour Organization (ILO) Code of Practice for the Protection of Workers’ Personal
Data of 1996 and the OECD Guidelines on the Protection of Privacy and Transborder Flows of
Personal Data of 1980. With the normative approach applied in almost all the aforementioned
legal instruments, the right to privacy protection, including the right to protection of personal data,
is regulated in a general way, without being adjusted and placed in the context of employment.
One of the most important legal sources in Europe governing the right to privacy is the European
Convention on Human Rights (ECHR), while one of the most significant authorities with
jurisdiction to decide cases of violation of this right and to interpret its scope is the European Court
of Human Rights in Strasbourg (ECtHR). In the subsequent parts of this paper, we analyze the role
of the ECHR and the ECtHR in regulating and interpreting the right to privacy in the context of
employment, in order to, among other things, draw the attention to the Macedonian legislator and
contribute to more adequate demarcation between the protection of the right to privacy of
employees on the one hand and the admissible interference with this right by employers, on the
other