Is it a breach of the right to private life to check an employee’s emails?

In a recent case decided by the European Court of Human Rights the question of whether a right to respect for private life and correspondence was applicable in the context of employers monitoring employees.

The Law

Article 8 of the European Convention on Human Rights Convention, provides:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

The Facts

This is a case that originated in Romania when a Romanian National, Mr Barbulescu, was dismissed from his employment as an engineer in charge of sales for a private company.

At the request of his employer Mr Barbulescu set up a Yahoo messenger account for the purpose of responding to client enquiries. In July 2007 Mr Barbulescu was informed by his employer that his Yahoo Messenger communications had been monitored and that the records for the period 05 – 13 July 2007 showed that he had been using the internet for personal use. Mr Barbulescu denied that he had been using the internet for personal use, and the employer produced 45 pages containing transcripts of messages between Mr Barbulescu, his fiancé and his brother. Also within the documentation were messages that Mr Barbulescu had exchanged with his fiancés using his own personal Yahoo Messenger account.

Mr Barbulescu’s employment was terminated as he was acting contrary to the employers internal regulations which strictly forbid the use of computers for personal purposes.

Mr Barbulescu made a claim to the Bucharest County Court on the basis that his employer had violated his right to correspondence which was protected by the Romanian Constitution and Criminal Code.

The Bucharest County Court did not agree with Mr Barbulescu and his complaint was dismissed. In particular the Bucharest County Court noted that Mr Barbulescu had been informed by his employer that the use of company resources for personal purposes was prohibited. The employer had the right to monitor use of their computers in the workplace to check that tasks required were being completed. Mr Barbulescu appeal against the decision was not allowed and so he pursued his rights to the European Court of Human Rights (ECHR).

Mr Barbulescu claim was against the Romanian Government as you cannot make a claim for breach of Human Rights against a private individual or Company, only against a public authority. He alleged that the State had a positive obligation in accordance with Article 8, and that this provision was applicable to his case ‘on account of the Romanian State’s failure to protect his private sphere from interference by his employer’.

The Decision

The ECHR noted that there is balance to be struck by the State in the obligations and rights to respect the private life and correspondence of employer and employee.

They examined the circumstances of this case, noting that both Romanian Courts had carefully considered the issues and analysed events. It was noted that the Yahoo Messenger account was set up for the purpose of communicating with clients, and it was a check of this professional activity which was undertaken by the employer. There was no convincing reason why Mr Barbulescu had used the Yahoo Messenger account for personal messages, and accordingly why the employer should not check them.

The ECHR concluded that there was nothing in this case to indicate that the Romanian authorities had failed to strike a fair balance between Mr Barbulescu’s right to respect for his private life under Article 8 and his employer’s interests.

Points to note

Employers can legitimately monitor their employees use of work computers, however it is important to ensure that employees are aware that such monitoring is taking place and that such monitoring is only for the purpose of verifying that employees are completing their professional tasks during working hours.

Employers in the UK must also consider their obligations under the Data Protection Act.

What action do you need to take?

1. Check your staff handbook and procedures to see what provision you have for monitoring communications.
2. Ensure that your policy on the personal use of emails, computers systems, telephone and internet is clear and communicated (preferably in writing) to all of your employees, along with the sanction that will be applied for any breach.
3. If you would like some assistance in ensuring you have the relevant policies and procedures in place please contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email alison@realemeploymentlawadvice.co.uk

Case Name

Barbulescu v Romania – European Court of Human Rights