Is an employees right to respect for private life, home and correspondence breached if employers monitor their use of the internet?

Social Media

 

No it is not, subject to the requirements of reasonableness and proportionality, according to the European Court of Human Rights in the recent case of Barbulescu v Romania.

Background

Article 8 of the European Convention on Human Rights states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’ without interference from a third party. This covers telephone calls, information derived from the use of the internet and emails and letters sent from work.  Employees have a ‘reasonable expectation of privacy’ and Article 8 would likely to be infringed if they have not been informed that their actions may be monitored and if there is no IT policy in place.

 

Facts of the case

Mr Barbulescu was an engineer who, at the request of his employer, set up a Yahoo Messenger account to respond to client enquiries. He was informed that these communications would be monitored and the employer’s regulations explicitly prohibited employees to use computers and the internet for personal use. Mr Barbulescu used the Yahoo account to receive and send personal messages about his health and sex life with his fiancé and brother. His employer accessed this account and discovered these personal messages accidently.  Mr Babulescu’s employment was terminated for breach of the company’s internal regulations and he argued that he was unfairly dismissed.  The court decided that the dismissal was fair as Mr Babulescu had been aware of the company’s regulations.  Mr Babulescu appealed against this decision and argued that all of his personal communications should be excluded as evidence on the grounds that his employer had violated his right to privacy under Article 8 of the European Convention.  His appeal was dismissed and Mr Barbulescu took his case to the European Court of Human Rights.

 

So, what did the European Court of Human rights decide?

The European Court of Human Rights held that whilst Article 8 was engaged, the courts were entitled to look at his personal communications in deciding whether the dismissal was fair.  The court provided that although Article 8 is to protect individuals against arbitrary interference, interference can take place in certain circumstances particularly for employers to be able to verify employees are completing professional tasks during work time. In this case, the Court found that there had been no violation of Article 8 because the monitoring of the account by his employer had been limited and proportionate.

 

What are the implications for employers?

This case does not mean that employers have the right to spy on employees personal emails, as existing UK legislation including the Data Protection Act 1998 and Regulation of Investigatory Powers Act 2000 still apply. Limitations are placed on the employers powers to monitor their employee’s private communications. Employers need to ensure that they have clear policies in place regarding social media, email and internet use in the work place and that they respond to any potential breach proportionately and in line with these policies.

 

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