Barbulescu v Romania: can employers monitor their employees’ personal messages?
In January 2016, the European Court of Human Rights (ECHR) has rejected a Romanian national’s claim against his employer’s decision to dismiss him for using a Yahoo Messenger business account to send personal messages.
Mr Barbulescu was an engineer. He was required by his employer to open a Yahoo Messenger account for business reasons so he could communicate with customers.
He used the account to send and receive personal messages with his fiancée and his brother, including messages that contained intimate information.
All the messages he sent were during working hours.
His employer came across the messages accidently. However, they later produced a 45-page transcript of personal messages.
His employer dismissed him for inappropriate use of the Yahoo Messenger account.
He issued claims in Romania, once he’d exhausted domestic litigation.
He argued in the ECHR that his dismissal had contravened his Article 8 rights (rights to respect for private life and correspondence).
The ECHR’s decision
The ECHR rejected Mr Barbulescu’s claim.
Emphasis was placed on an internal policy of Mr Barbulescu’s employer. This policy prohibited the use of company resources for personal purposes.
Because of this policy, it was held that Mr Barbulescu didn’t have any reasonable expectation that his communications wouldn’t be monitored.
The ECHR also took into consideration the fact that Mr Barbulescu’s employer found his personal messages accidently when they accessed the Yahoo Messenger account to review professional information.
What this means for you
Recent media coverage of this case has (mostly) been fanciful.
It’s not the case that employers can now freely monitor the private communications of their employees.
However, it confirms that you can access private communications in certain circumstances where your employees are aware their communications may be monitored. And in situations where you have reasonable cause to do so.
Another thing to bear in mind is that any of your internal investigations must be consistent with the Data Protection Act 1998.
Insofar as any adverse impact on an employee caused by monitoring must be justified, and where possible you should adopt less invasive means.
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