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Employer Privy to your Private Patter?

The European Court of Human Rights (ECHR) has handed down a decision regarding an employer’s right to access and read an employee’s private email messages when those messages are sent during working hours using the employer’s equipment.

Barbulescu v Romania

From the 1 August 2004 Mr Barbulescu was employed as an engineer in Romania. At the request of his employer, he set up a Yahoo Messenger account with the purpose of communicating with clients whilst at work.

On the 13 July 2007 Mr Barbulescu was informed that his Yahoo Messenger activity had been monitored from 5 – 13 July and that the evidence suggested he had been using the messaging service for personal emails. This was contrary to the employers internal regulations. At first, Mr Barbulescu denied that he had been using the messenger service for personal purposes but he was then was presented with a 45 page transcript taken from his Yahoo Messenger account. Mr Barbulescu had exchanged messages with both his fiancé and his brother and included content relating to his health and sex life.

On 1 August 2007 Mr Barbulescu was dismissed by the employer. Mr Barbulescu’s personal internet usage had contravened the company’s internal regulations which stated; “it is strictly forbidden….to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”

Mr Barbulescu challenged his employer’s decision, maintaining that by reading his private messages, the employer had violated his right to private life and correspondence protected by the Romanian Constitution under the European Convention on Human Rights. The Romanian County Court dismissed this, arguing that in dismissing Mr Barbulescu, the employer had complied with the dismissal proceedings as provided for by their domestic Labour Code. The Romanian County Court also acknowledged that Mr Barbulescu had been clearly informed of the employer’s internal regulations prohibiting the use of company resources for personal purposes.

The view of the Romanian County Court was that the employer’s right to monitor the employee’s use of the company’s computers in the workplace fell within the broad scope of the right to check the manner in which professional tasks are being completed. After an unsuccessful appeal, Mr Barbulescu applied to the ECHR.

The European Court of Human Rights

Mr Barbulescu argued that the personal/private emails he had sent whilst at work were protected by Article 8 of the European Convention on Human Rights in relation to “private life” and also “correspondence.” He argued that the domestic courts should not have been permitted to use the transcripts as evidence against him and complained that the employer’s decision to terminate his employment in the manner that it had was null and void because it had been based upon a breach of his human rights – which Mr Barbulescu said the domestic courts of Romania had failed to protect.

The ECHR discussed the notion of “private life” which has historically been a consistently broad concept. The ECHR maintained that a broad reading of Article 8 does not necessarily mean that it will protect every activity a person might seek to engage in with other human beings. The judges agreed with the earlier finding of the Romanian County Court, in that the employer had acted within its disciplinary powers since it had accessed the Yahoo Messenger account under the reasonable assumption that the information contained in that account would be purely professional.

Although the ECHR accepted that based on the facts of Mr Barbulescu’s case, Article 8 had been engaged, it held by a majority of six votes to one, that there had been no violation. The ECHR was satisfied that when Mr Barbulescu’s personal/private messages were used as evidence, the domestic courts did not attach any weight to the contents of the messages; rather they relied instead upon the extent that they proved Mr Barbulescu’s disciplinary breach. It was concluded that a fair balance had been struck between Mr Barbulescu’s rights under Article 8 and the interests of his employer.

Comment

Whilst the above case sets out the position under the European Convention on Human Rights, it isn’t quite the full picture as far as the UK is concerned, as snooping on employees could be a breach of the Data Protection Act 1998, particularly if it is without cause, without warning and disproportionate.

The case highlights the importance of a well drafted social media/communications policy. If personal usage is not permitted, employers should have a policy setting the ground rules, explaining the potential consequences of any breach and, importantly, explaining how usage will be monitored. Employers should also consider Part 3 of the Information Commissioner’s Employment Practices Code, which covers employee monitoring.

If you have any questions about  monitoring communications in the workplace or have any other employment law queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600.

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