In the recent case of Barbulescu v Romania, the European Court of Human Rights considered whether an employee’s right to privacy had been breached when his employer monitored his personal communications at work.
Under article 8 of the European Convention on Human Rights, “everyone has a right to respect for his private and family life, his home and his correspondence.” Mr Barbulescu worked as an engineer for a heating company. At his employer’s request, he set up a Yahoo Messenger account to deal with client enquiries. In July 2007, the employer informed Mr Barbulescu that it has been monitoring his Yahoo Messenger communications over the course of the week. The employer considered that Mr Barbulescu had used his Yahoo Messenger account for personal purposes in contravention of the employer’s IT policy, which strictly prohibited any personal use of the company’s computers, internet or telephones.
When Mr Barbulescu argued that he had only used the account for professional purposes, the employer produced a 45 page transcript of his Messenger communications during that week, which included messages he had exchanged with his brother and fiancée. The messages contained intimate personal details about his health and sex life. Mr Barbulescu was disciplined and dismissed for unauthorised personal use of the internet.
Mr Barbulescu brought an action in the Romanian courts challenging his dismissal. This failed, as the court held that the employer was entitled to check that work was being doing properly and Mr Barbulescu had been given adequate notice, both of the rule against personal use of company resources and the fact that monitoring would be undertaken. Mr Barbulescu then pursued a claim against the Romanian government in the ECHR, arguing that the Romanian courts should have excluded all evidence of his personal communications from the proceedings, on the grounds that it infringed his right to privacy and correspondence under Article 8.
The ECHR confirmed that telephone conversations, emails and internet use at work are covered by Article 8 and in the absence of a warning to the contrary, employees have a reasonable expectation as to the privacy of telephone calls, emails and internet use. However, in this case, the personal use of telephones and email at work was strictly forbidden.
Although Article 8 had been engaged, the interference with that right had been proportionate in the circumstances. The court had struck a fair balance between Mr Barbulescu’s right to respect for his private life and correspondence and his employer’s interests. It was not unreasonable for an employer to want to verify that employees were working during working hours and the courts had been entitled to look at evidence of Mr Barbulescu’s personal communications when deciding whether his dismissal was justified. Mr Barbulescu’s case was dismissed.
This case attracted a lot of attention in the UK and reports in the media may have given employers the impression that they have been given the go ahead to read employees’ personal emails. However, one of the key reasons for the ECHR’s decision was the fact that Mr Barbulescu had been given a clear warning that he was not permitted to send private messages using his work computer and knew that his communications may be monitored. Furthermore, employers should be aware that the Data Protection Act 1998 places additional limitations on employers’ rights to monitor employees’ personal communications in the UK.