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International Law

The right to online privacy unfolding – Barbulescu final judgment

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(Reflection on text: Privacy i(n)t context of 18 April 2016,

While there was a surge of media analyses more then one and a half year ago, when the European Court of Human Rights (“the Court“)  found no violation of the right to respect for privacy for monitoring Yahoo account of employee[1], earlier in September 2017 the story unfolded completely otherwise.

The Grand Chamber of the same Court now ruled that the monitoring of Mr. Barbulescu’s private correspondence with his fiancée and brother, by his employer, did constitute an intrusion into his privacy and the subsequent acts by domestic courts did amount to a violation of the right to respect for his privacy, under Article 8 of the European Convention of Human Rights. Online privacy gets protected and the new path of European Convention case-law is created.

But, back then, after the first judgment, legal society was worried that the privacy requirements were made vulnerable by the IT development and IT society. Two facts were then seen at the surface. First, the employer monitored employee’s private conversation and the second, no violation of Article 8, right to respect for privacy, was found.

However, in order that the case-law of the Court be correctly understood and applied, one has to look beneath the surface.

The Court noted, in January 2016, that the employer did not warn the employee, Mr. Barbulescu, of the possibility of checks of the Yahoo Messenger, but did adopt internal rules according to which it was strictly forbidden to use computers, photocopiers, telephones, telex and fax machines for personal purposes. So we wondered then if that could be seen as a warning? Did an employer have a right to monitor personal messages of an employee? Could it really be that the Court gave the advantage to a market economy and profit growth, versus privacy? (Privacy i(n)t context,

At that point the Court contended that internal policy rules or warning, did give the employers the right to rule the employees space, of course, during work hours, and that their right to monitor the job done by his employees could have been stronger then their right to privacy. However, the Court in the first judgment did not go into details as to the quality of internal rules or any more specific notification of monitoring. It took into consideration the ‘expectation of privacy’, pointing that Mr. Barbulescu could not have reasonably expected that his privacy would be protected, having in mind that the employer issued instructions forbidding the use of, inter alia, computers, for private purposes. On the other hand, the Court, sitting now in Grand Chamber, has very importantly contended that

‘…an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.’

In its final judgment of September, with far more details, it presented the standards which must be followed in order that Article 8 of the Convention is respected, in cases of protection ‘online’ privacy. The Court has thus provided a set of principles that ‘should be taken into consideration with a view to protecting right to online privacy and at the same time, respecting the right of employers to restrict the use of electronic communications for private purposes during work hours. So the States should take into consideration the following factors’(para 121):

  1. The employees have to be in advance and clearly notified of the possibility that the employer might take measures to monitor correspondence and of implementation of such measures.
  2. What is theextent of the monitoring by the employer and the degree of intrusion into the employee’s privacy? Is the flow of communications subject of monitoring, or their content? All communications or only part of them? Limited in time and space? Number of people having access?
  3. Has the employer provided legitimate reasons to justify monitoring the communications and accessing their actual content. The monitoring of content is more invasive and needs weightier justification.
  4. Are there possible any less intrusive methods and measures than directly accessing the content of the employee’s communications?
  5. What are the consequences of the monitoring for the employee subjected to it?
  6. Has the employee been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature. Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.

So, the employers should not generally monitor the employee’s private correspondence. But if they do, they must provide clear and beforehand notification, explain the extent of monitoring and degree of intrusion, provide legitimate reasons to justify it, check whether there are less intrusive methods, consequences of the monitoring, and safeguards.

Protection against arbitrariness, which is the leading principle of the European Convention, remained at the first and utmost place. If too loose rules exist or if they do not exist at all, that leaves a place for arbitrariness and that is a step closer to violation of rights.

The Court did allow a wide margin of appreciation to States when determining whether and how they will enact a legislation on conditions in which employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace. But, the protection against arbitrariness, being recognized through a Court’s well established case-law, was stressed once more.

Speaking of State’s role in protection of ‘online’ privacy it should be noted that the monitoring of employee’s correspondence was analyzed not through the interference, since it was done by private employer and not by Contracting State, but through the positive obligations inherent to states in order to respect human rights. In that regard it is important to evaluate whether the State has done enough to protect the employee from interference by his employer. Accordingly, even if the employer does certain acts of intrusion into his employee’s privacy, the State, through its positive obligations has to do enough in order to examine thoroughly the acts in question and to provide the employee with redress if suitable. Otherwise, the State will be responsible for violation of the privacy rights under the European Convention.

The Chamber, in the first judgment, was satisfied that the applicant’s case was heard by labour courts, that he was able to raise his arguments, and that domestic courts had not based their decisions on the contents of the employer’s communications and that the employer’s monitoring activities were limited to his use of Yahoo Messenger.

However, Mr. Barbulescu claimed that he was not informed beforehand of the monitoring by the employer, which monitoring resulted in forty-five pages transcript of messages that he exchanged with his brother and fiancée, which included personal matters some of which being of intimate nature.

The Court, sitting in a Grand Chamber, has put a task upon it to see whether the national authorities performed a balancing exercise, between the applicant’s right to respect for his private life and correspondence and the employer’s interests. The employer’s interests were recognized as smooth running of the company even through mechanisms for checking that its employees are performing their professional duties adequately and with the necessary diligence. The employee’s interest is of course the protection of his privacy.

The Court, in the last judgment noted that the domestic courts failed to determine whether the prior notice on monitoring was given to applicant, whether he was informed of the nature or the extent of monitoring, the reasons to justify monitoring measures, whether the employer could use less intrusive measures. For those reasons the Court has found a violation of Article 8 of the European Convention.

Overall, the Grand Chamber judgment is much more comprehensive and exhaustive comparing to the Chamber judgment in which the Court’s assessment as to the merits was rather brief. The Chamber was openly inclined towards the employer, suggesting that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours, that the monitoring was limited in scope, including only Yahoo Messenger, blaming Mr. Barbulescu for not having convincingly explained why he had used the Yahoo messenger account for personal purposes (para 60, 61 of the Chamber judgment).

While it is very interesting that the Court shifted 180 degrees from its first judgment, we must be contended that the right to privacy was once more protected by the final judgment of the Court, placing a path for new future cases involving protection of rights on internet.

So, looking back to view of dissenting judge Mr. Pinto de Albuquerque in the first judgment of the Court in this case, that was raised in the previous article,  who regretted the Court not taking the opportunity to develop its case-law in the field of protection of privacy with regard to employees’ Internet communications, it seems now that the Court did succeed to open a new path to its case-law, which will in future certainly be increasingly important, having in mind the fast IT growth and its influence to everyday life.

But do not forget to still keep it simple, as the Court has reminded: “In order to be fruitful, labour relations must be based on mutual trust[2]”. Monitoring of employees goes against the mutual trust, and certainly undermines not only the privacy of the monitored employee, but also the dignity of the company which was connected with monitoring.

[1] Barbulescu v. Romania, judgmnet of the European Court of Human Rights of 12 January 2016{“tabview”:[“document”],”itemid”:[“001-159906”]}

[2] Palomo Sánchez and Others v. Spain, judgment of the European Court of Human Rights of 12 September 2011, para 76

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International Law

Democracy at Risk: The Global Challenge of Rising Populism and Nationalism

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Authors: Meherab Hossain and Md. Obaidullah*

Populism and nationalism represent two discrete political ideologies; however, they may pose potential threats to democracy. Populism is a political ideology and approach characterized by the emphasis on the interests and concerns of ordinary people against established elites or perceived sources of power and privilege. Populist leaders often portray themselves as champions of the “common people” and claim to represent their grievances and desires. It is a political stance that emphasizes the idea of “the people” and often contrasts this group against “the elite”.

 Nationalism, on the other hand, is an ideology based on the premise that the individual’s loyalty and devotion to the nation-state surpass other individual or group interests. It represents a political principal positing that there should be congruence between the political entity and the nation-state. While populism emphasizes the idea of “the people,” nationalism emphasizes the idea of the nation-state.

In what ways can populism pose a threat to democracy?

While some argue that populism is not a threat to democracy per se, others contend that it poses a serious risk to democratic institutions. Populism can become a threat to democracy by undermining formal institutions and functions, discrediting the media, and targeting specific social groups, such as immigrants or minorities. This threat arises from its potential to confer a moral legitimacy upon the state that it might otherwise lack. Consequently, it can jeopardize the defense mechanisms established to safeguard against tyranny, including freedoms, checks and balances, the rule of law, tolerance, autonomous social institutions, individual and group rights, as well as pluralism.  Populism imposes an assumption of uniformity onto the diverse fabric of reality, distorting not only factual representations but also elevating the attributes of certain social groups above those of others.

In Turkey, President Recep Tayyip Erdogan’s populist rhetoric and policies have led to the erosion of democratic institutions, including the judiciary and the media. Populism in Turkey can be traced back to the era of Mustafa Kemal Atatürk’s regime, during which Atatürk’s elites, who had limited commonality with the broader society, assumed the responsibility of educating and guiding the masses. This phenomenon, often referred to as ‘regime elitism,’ has rendered Turkey susceptible to populism, which fundamentally revolves around the conflict between the elites and the general populace.

 In Hungary, Prime Minister Viktor Orban’s populist government has been accused of undermining the rule of law, limiting press freedom, and targeting civil society groups. He has established a repressive and progressively authoritarian state that operates under the guise of democracy.

In media discourse, he has been designated as a populist leader. Empirical analysis reveals that Hungary is currently governed by a form of political populism, characterized as conservative right-wing populism. The salient features of Hungarian political dynamics encompass the government’s claim of challenging established elites, a lack of a clearly defined political agenda, the utilization of propaganda as a prominent tool in its political communications, advocacy for the preservation of a Christian Hungary, intervention in areas traditionally considered independent from state interference such as education and jurisdiction, the implementation of mass clientelism to reward its supporters while exerting pressure on critics, and overt criticism of non-governmental organizations (NGOs). Consequently, this trajectory underscores the ascendance of authoritarianism within Hungary.

How Nationalism can be threat to Democracy?

Nationalism can pose a potential threat to both democracy and international relations when it manifests in forms of discrimination, violence, and the exclusion of specific groups. The ascension of nationalism may jeopardize the established efficacy of multilateralism, which has historically been instrumental in preserving lives and averting conflicts. This can result in unilateral actions by certain nations, thereby undermining the collaborative approach to the peaceful resolution of disputes.

Nationalism can serve as a catalyst for conflict and division, fostering tendencies toward exclusivity and competition that impede the resolution of common global challenges. The ascent of economic nationalism has the potential to undermine global collaboration and policy alignment, resulting in a resurgence of nationalist economic strategies in many regions worldwide. Such strategies often prioritize individual national objectives over the collective global interest. Unrestrained nationalism can pose a threat to stability by inflaming ethnic tensions, thereby increasing the likelihood of violence and conflict.

In Europe, nationalism has historically been a significant catalyst for conflict and division, spanning from the emergence of Nazi Germany in the 1930s to more recent upsurges of nationalist movements in various countries. Nationalism tends to foster exclusivity and competition, thereby complicating efforts to address common global challenges. Under nationalist ideology, exemplified by Hitler, instances of extreme cruelty and inhumanity have been documented.

Another instance of nationalism, which presents a significant challenge to democracy, is the ascendance of Hindu extremism and nationalism in India, resulting in communal tensions. Since the Hindu nationalist BJP came into power, there has been a heightened sense of insecurity among Muslims in India, with the situation reaching unprecedented levels of concern. The government has actively employed media, television, and the film industry to propagate Islamophobia among the Hindu majority. In 2018, the Indian High Court rendered a judgment advocating for India to be declared a Hindu state, citing the country’s historical religious divisions. Nonetheless, it is crucial to emphasize that, in accordance with its constitution, India is mandated to maintain a secular state. Needless to say, the rise of Hindu nationalism under Prime Minister Narendra Modi has been accused of fueling sectarian tensions and undermining the country’s secular democracy.

Indeed, while populism and nationalism are distinct concepts, their simultaneous global rise poses a considerable threat to democracy. These ideologies frequently favor specific groups over the broader population and can corrode democratic principles. They tend to exacerbate polarization and undermine vital democratic institutions. Hence, many countries are grappling with substantial challenges to their democratic systems, which puts their stability and effectiveness at risk.

*Md. Obaidullah holds both a BSS and an MSS degree in Public Administration from the University of Barishal. He is currently employed as a Research Assistant at the Centre for Advanced Social Research in Dhaka, Bangladesh. His writing expertise spans various subjects, including Public Policy, Politics, Governance, Climate Change, and Diplomacy, on which he frequently contributes

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International Law

Principles of International Relations as Homo Sapiens

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After listening to Hariri’s Home Sapiens, I grasped, with a new perspective, the state of our humanity. I deeply realized that indeed we are the last human species. Our closest relative and competitor, the Neanderthals, were long gone. So how do we, as homo sapiens (“wise men”), wisely ensure the well-being and future of our species?  The question seems too general or even irrelevant to many considering that everyday life on Earth continues despite the horrors of war, the devastation of calamities, and the forebodings of apocalypticism. But let’s not toy around with the destructive propensity and capability of our species which could have played a significant role in the demise of the Neanderthals and could also threaten our very own existence.

Life on Earth now is multifaceted and more complex than when we were still cohabiting our planet with other human species. The ancient “us and them” have become the modern and ironically complicated “among us,” and consequentially “us versus us.” We have become the only remaining human species—but the only remaining species that wants to destroy itself for self-interest.     

Reflecting on the implications of our being the only human species left on Earth, I deduce the following principles for our international relations.

As one human species living on one planet:

The principle of cohabitation

We all have the rights to peacefully and productively cohabit on planet Earth without the sequestration of others due to superficialdiversity such as geographical locations, skin color, social ideology, and culture; or because of national or corporate resource exploitation.

The principle of mutual survival

We cannot survive without the human ecosystem. Human life is a multidimensional ecosystem. It cannot survive and thrive with only one feature or characteristic in one locality. It necessitates global diversity and mutuality. For our species to survive, our relations need to be based on mutual universal survival.

The principle of co-thriving

We cannot thrive secluded from the universal life system. Regression and destruction of one geographical locus, one ethnicity, or one natural feature impacts the whole bio-societal system. Inversely, the flourishing of one locus, one ethnicity, or one natural feature in conjunction with others, furnishes the whole human system to thrive.

The principle of developmental competition

We have both the latent propensity for destructive bouts and a penchant for developmental competition. International relations based on destructive bouts eventually inflect global crises. Global relations based on developmental competition advance our civilization. Each progress in a varied sphere, though will not be the same, complements the whole progression.  

The principle of common home protection

We only have one home, one present habitat for our species to live and thrive, and one human family. Allowing these to decay will not only result in our degeneration but also the eventual risk of our survival.

As homo sapiens, we are at the top of the food chain and intolerant. We want to devour everything we can see and irrationally have the delusion of grandeur of being the only predator left. But the prey and the predator are one and the same. It’s not so naïve to outline what can be tagged as an idealistic theoretical construct. But let’s also accept the fact that the most influencing factors in our international relations are either commercially exploitive or ideologically invasive. And these are not sustainable and globally beneficial—for they are calculated goodness intended for the temporal benefits of the very few. The principle of the common good will enable us to see more beyond our present state and ensure the well-being and future of our species. 

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International Law

UN 2.0: Reimagining our global organization for a world in flux

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Working towards better results on the ground and focused on the future, the UN family is undergoing a reset that will give rise to more agile, tech-savvy and impactful UN organizations.This transformation in skills and culture, encapsulated in the Secretary-General’s vision of a UN 2.0, is focused on fostering cutting-edge capabilities in data, digital, innovation, foresight and behavioural science – to deliver stronger results, better Member State support, and faster progress towards the Sustainable Development Goals.

During a roundtable with Member States, a group of UN leaders and experts explained the potential and strategies of UN 2.0. They highlighted early success stories, that, when replicated, will boost on-the-ground impact of a stronger, more flexible and modern UN. 

This event came before the launch of the Secretary-General’s policy brief on the issue of a UN 2.0 revamp.

At the core of UN 2.0 is the so-named ‘Quintet of Change’, a powerful combination of data, innovation, digital solutions, foresight, and behavioural science solutions.

Opening the discussion, Melissa Fleming, the Under-Secretary-General for Global Communications, emphasized the need for change, highlighting that the progress towards the 2030 Agenda for Sustainable Development – adopted by all UN Member States in 2015 as a blueprint for peace and prosperity – is currently not on track

Responding to the growing demand for reform, UN 2.0 represents a shift in how UN system organizations operate, aiming to accelerate progress towards the Sustainable Development Goals (SDGs). 

Guy Ryder, the Under-Secretary-General for Policy, who brings extensive experience from his decade-long tenure leading the International Labour Organization (ILO), explained that the purpose of UN 2.0 is to equip UN organizations with the contemporary expertise required to be an effective partner for Member States in the twenty-first century.

A transformed UN leaves no one behind

Catherine Pollard, the Under-Secretary-General for Management Strategy, Policy, and Compliance, explained that the primary beneficiaries of UN 2.0 are the people the UN serves in its 193 member countries. “But equally important, UN 2.0 is about UN organizations themselves, because they will develop new skills, new talent, new purpose to better deliver our mandate.”

The UN continues to be a relevant player in the multilateral arena. To maintain this relevance, Ms. Pollard said, the Organization will develop employees’ skills, offer more training, attract new talents, and improve human resources policies.

Like many things in the modern world, UN 2.0 will be driven by digital solutions and cutting-edge technologies. Robert Opp, Chief Digital Officer of UNDP, the UN agency promoting international development, advocated for the potential that new technologies offer and contemplated on what the future can bring. 

“AI is the current challenge, but there will be quantum computing and other breakthroughs around the corner, what we haven’t even anticipated,” he said, adding that when the ‘Quintet of Change’ is successfully implemented across the UN system, the Organization’s agility in responding to new challenges and in helping Member States will increase dramatically. 

Data, digital innovation, foresight and behavioural science play key roles  

The UN is actively supporting Member States in their pursuit of new solutions. A network of innovation labs has been established in more than 90 countries, serving as platforms for sharing new expertise in technology, data and other areas.

One notable success story comes from Indonesia, explained Faizal Thamrin, Data Scientist at UN Global Pulse Asia-Pacific. He illustrated how his team collaborated with the Government and thousands of small and medium enterprises to prepare for the future. Additionally, the team’s data analytics skills, combined with Indonesia’s experience, helped replicate early warning systems for natural disasters across the region.

UN 2.0 extends beyond data and digital solutions. Behavioural science, a multidisciplinary field that integrates insights from psychology, economics, communications, data science, sociology, and more, plays a crucial role in the ‘Quintet of Change’. 

Claire Hobden, an ILO expert on domestic work, provided an example from Argentina’s informal sector. With support from UN colleagues, the Government was able to significantly expand social security coverage to domestic workers, such as nannies and caregivers, who are often hard to reach. 

“Through a very small intervention we  hope to be able to give more people access to social security, realizing their rights and access to decent work,” said Ms. Hobden noting the huge potential of replicating these methods, as there are 75 million such workers around the globe.

‘With new tools, we can do better’ 

In conversation with senior diplomats, Mr. Ryder emphasized that UN 2.0 is about potential of doing our job better “if we take a fresh look at some of the things we’ve been doing for a long time.”

Commenting on the journey ahead for UN colleagues, Mr. Ryder said “What you’ve done has been great. Now we have new tools. Let’s pick up those new tools, use them and maybe we can improve on what we’ve done before. It’s not saying what happened in the past was bad. It’s saying what we do in the future can be better”.

The event was co-organized by the Permanent Missions of Norway and the Republic of Indonesia to the United Nations in partnership with the Executive Office of the Secretary-General.

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