We previously reported on the case of Barbulescu v Romania where the European Court of Human Rights (ECtHR) found that an employer’s potential breach of an employee’s privacy was justified when it monitored an employee’s Yahoo Messenger account. Unusually there has been an appeal within the ECtHR to the Grand Chamber and the decision has been reversed.
The case relates to a Romanian engineer whose employer asked him to set up a Yahoo Messenger account for work purposes. The employer had a strict rule in place confirming that it was forbidden to use computers for personal purposes, however there was no reference to monitoring emails or computer use. In July 2007 the company monitored Mr Barbulescu’s Yahoo Messenger account and found that he was using it for private messages with his fiancé and his brother. The contents of the messages were both professional and personal and some related to Mr Barbulescu’s sex life and his health. When initially asked about his use of the Messenger account Mr Barbulescu claimed he abided by the company rules, however he was subsequently presented with a 45 page transcript of private messages following which the company terminated his employment.
The ECtHR initially found that Article 8 of the European Convention on Human Rights (respect to private and family life) was engaged but that the Romanian courts were entitled to examine the private communications to determine whether the dismissal of Mr Barbulescu was justified.
Appeal to the Grand Chamber of the ECtHR
The Grand Chamber found that Mr Barbulescu had a right to privacy in the workplace and that he should have been warned in advance that his emails were being monitored – “it does not appear that the applicant was informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual contents of his communications”. On this basis the Chamber found that the Romanian national courts had failed to protect Mr Barbulescu’s right to privacy.
When considering the expectation of privacy which an employee may have, the Grand Chamber confirmed that an employer’s policy cannot reduce private social life to zero.
Following the initial ECtHR judgment the tabloids jumped on the decision reporting employers’ right to spy on their employees. This was not the case and even when the previous judgment stood, it was still a question of reasonableness and proportionality to the business interest being protected.
With the reversal of the decision employers will have to be even more diligent and ensure that any monitoring of computer use and emails is justified. Employers should review contractual provisions and IT policies to ensure they clearly stipulate what personal use is acceptable and what monitoring could be carried out and for what purpose. Employees should be well informed of the level of privacy they can expect.
The Grand Chamber’s ruling provides a useful reminder that even with robust contractual and policy provisions in place, employers will still need to be mindful of Article 8 and will have to be prepared to justify any action they take. The key message is still proportionality; although the case serves as a useful reminder for employers and employees, the law remains the same.
The ECtHR and the European Convention on Human Rights is distinct from our membership of the EU and as such this decision will stand post-Brexit. The General Data Protection Regulation (GDPR) is due in May 2018 when further guidance and regulation on employee monitoring can be expected.
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