Is the right to respect for private life, home and correspondence breached if employers monitor employees’ personal internet use at work?
In Barbulescu v Romania, the European Court of Human Rights have held that, subject to the requirements of reasonableness and proportionality, there will be no violation of an employee’s right under Article 8 of the European Convention on Human Rights (“ECHR”) in circumstances where an employee had been dismissed for using the company’s internet for personal purposes during working hours.
Monitoring Employees Internet Use
Background
Article 8 ECHR protects the right to respect for correspondence, including the right to communicate and the confidentiality of private communications without interference by a third party and this has previously been held to extend to letters, emails and telephone conversations sent or conducted whilst at work (Halford v UK and Copland v UK).
However, it is important to note that in these two previous cases there had been no IT policy in place in the workplace and the employees concerned had not been told that their communications might be monitored.
Facts of the case
Mr Barbulescu was a Romanian engineer employed by a private company. At the request of his employer, he set up a Yahoo Messenger account for use in responding to client enquiries.
Mr Barbulescu then proceeded to use his business Yahoo Messenger account to send and to receive personal messages with his fiancée and his brother, including messages about his health and sex life. He also used the internet for personal purposes, in breach of his employment contract.
His employer accessed this business Yahoo account in the belief that it contained client-related communications only. On discovering the above, the company then monitored his Yahoo Messenger communications for a period of a week and proceeded to dismiss Mr Barbulescu on grounds of a breach of company regulations. Mr Barbulescu first denied being involved in any such communications, and then when later presented with transcripts of the emails, argued that his employer had unfairly dismissed him under Romanian labour law. These transcripts were also made available to his colleagues and discussed publicly.
The Romanian Courts dismissed Mr Barbulescu’s complaint, relying on the fact that he had been made aware of the company’s regulations prohibiting the use of company resources for personal purposes and that surveillance may be undertaken. Mr Barbulescu appealed this decision in the Romanian Courts, arguing that evidence of his personal communications should have been excluded when deciding on the fairness of his dismissal, on the grounds that it infringed his Article 8 ECHR right to privacy but this appeal was dismissed.
Mr Barbulescu then took his case to the European Court of Human Rights.
Decision
The European Court of Human Rights held by majority that whilst Article 8 was engaged, in this case the employer’s monitoring of Mr Barbulescu’s communications had been reasonable and was in line with its workplace rules and regulations. The Court stated that although the purpose of Article 8 is to protect individuals against arbitrary interference by public authorities, it does not provide that interference cannot take place in certain circumstances.
The Court was swayed by the fact that the Romanian Court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours, even where it is not alleged that the employee has breached a policy. Accordingly, the Romanian Courts had correctly balanced the employee’s rights against the interests of the employer and the employer’s interference with Mr Barbulescu’s Article 8 ECHR was proportionate.
Comment
The case has received a great deal of media coverage, some giving the misleading impression that employers now have a ‘green light to snoop on employees‘ personal emails. However, the decision does not overrule previous European case law on the reasonable expectation of privacy, nor is it an endorsement of the employer’s overall handling of this case.
Existing UK legislation will still be applicable and places important limitations on employers’ powers to monitor their employees’ private communications. As such, employers must ensure that they respond to any potential breach proportionately and in line with their employer’s policies.
The case highlights the need for employers to put in place clear policies on social media, email and internet use in the workplace, particularly with the ever-increasing introduction of the ‘Bring Your Own Device’ to work concept which further blurs the distinction between private and professional communications at work.
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