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9-03-2016

In BĂRBULESCU v. ROMANIA the European Court of Human Rights (EUCHR) had to determine whether an Employer was entitled to monitor an employee’s private electronic communications.

B was employed from 1 August 2004 to 6 August 2007 as an engineer in charge of sales. He created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.  He was told by his employer that these communications had been monitored for a period of around 7 days and that the records showed that he had been using the messenger service for private purposes in breach of the company’s policies.  The employee argued that in accessing his private messages the employer was in breach of the Romanian criminal code and his Article 8 rights to privacy and therefore could not rely on the evidence in relation to disciplinary proceedings during which he was dismissed. The EUCHR disagreed.

The Court’s decision has been widely reported as a snooper’s charter, but that would be incorrect.  In this instance the Court recognised that Article 8 rights did apply. However, since the employer legitimately believed that the Yahoo account was being used for work purposes, the private messages were relied upon by the employer only to the extent that they were necessary to show that the employee was in breach of the employer’s internal policies and the employer’s monitoring of the employee was limited in its scope.  The EUCHR concluded that the domestic courts had struck the correct balance between the employee’s expectation of privacy and the employer’s legitimate interests.

An employer may have an entirely legitimate reason for wanting to monitor employee’s emails as an employee’s conduct could lead to performance issues (excessive use of private email during working hours), transmission of confidential information and various legal liabilities such as discrimination, harassment or defamation.  However, the employer’s legitimate interest is just one factor to be taken into account.  An employer’s monitoring should be proportionate and employees should be advised if monitoring is likely to take place.  It is good practice to consider carrying out an impact assessment before monitoring takes place and to use the least intrusive method of monitoring that is appropriate in the circumstances. The importance of providing information to employees about any monitoring means that employers should have an electronic communications policy.  Importantly, employers should not rely on this case as giving them authority to trawl through their employee’s private emails on a whim.

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