• European Decision on Privacy at Work


    The European Court of Human Rights (ECHR) has ruled that businesses are entitled to check that their staff are using private messaging applications for work purposes during work hours.


    Barbulescu (B) had registered a Yahoo Messenger account at his employer’s request. The employer terminated his contract of employment when it found he had used the service for personal purposes during work hours in breach of company policy. B contested the dismissal arguing that the company had breached his Article 8 Convention right to privacy.


    The ECHR held that the employer had not infringed the privacy rights of B when it had accessed personal communications he had sent during work time via Yahoo Messenger. The ECHR ruled that the Romanian courts had struck a “fair balance” in assessing B’s right to privacy and the interests of the employer when determining that the company had not infringed on his privacy rights by monitoring his personal communications. ECHR said that there had therefore been “no violation of Article 8” of the European Convention on Human Rights which provides for an individual’s right to privacy.

    The ECHR accepted that the employer had accessed B’s Yahoo Messenger account by relying on “disciplinary powers” set out in Romanian employment law and that it had done so “on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate”.

    The ECHR also ruled that the employer’s monitoring activities had been “limited in scope” and were “proportionate”. This is because the company had only examined the communications on B’s Yahoo Messenger account and not the other data and documents that were stored on his computer. “While it is true that it had not been claimed that the [engineer] had caused actual damage to his employer, the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours,” the ECHR said in its ruling.

    Action points/comments:

    •   Privacy rights are not absolute, however, and as this case shows they can, on occasion, be trumped by the interests being pursued by employers. The ECHR’s judgment, though, does not present a green light to companies to trawl through personal communications of staff.
    •   The ECHR’s decision was couched in the context of disciplinary proceedings where the employer checked an employee’s communications to verify whether a messaging tool was being used for professional purposes. The court also explained that the company had not gone beyond monitoring the employee’s communications when intruding into the man’s privacy by looking at other data and documents on his computer. Doing so may have been classed as a disproportionate privacy intrusion and could have led to a different outcome in this case
    •   Employees are entitled to fair warning that their communications might be monitored. Employers should draw up internal policies that carefully explain the circumstances in which monitoring might happen and what important concepts like ‘reasonable use’ of work computers for personal purposes mean in practice, as well as what sanctions will apply for breach of those conditions


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