Monitoring employees online communications

A very recent decision of the European Court of Human Rights (‘the Court’) has clarified the circumstances in which employers can monitor their employees online communications.

In the case of Barbulescu v Romania (judgment given on 12 January 2016) Mr. B was dismissed for using the internet for personal purposes during work hours.

The employer, which had a policy that prohibited the use of the company’s equipment for personal purposes, suspected B of breaching this policy, so it monitored his email messages for a period without his knowledge.

When confronted with the results, B denied personal usage until he was presented with a 45-page printout of his messages, including those exchanged with his fiancée and his brother.

B argued that his employer violated his right to respect for private life, home and correspondence, as provided for in Article 8 of the European Convention of Human Rights (the “ECHR”) and that therefore, his dismissal was unlawful.

The Court agreed with B that his rights under Article 8 ECHR had been interfered with but decided that the employer’s actions were justified: “the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.

In addition, the Court found that the employer’s monitoring was proportionate and within the scope of the company’s internal regulations. Accordingly, the Court held that the employer’s monitoring did not violate Article 8 of the ECHR.

Comment

Employers often wish to monitor how their employees are using computers and the internet during office hours. They may suspect wrongdoing, such as improper use of confidential client or business information, or accessing material that is prohibited by the employer’s policies. They may be concerned about employees using work facilities – and work time – for personal communications.

This judgment shows that employees cannot expect their private communications on work channels to be sacrosanct, but it should not be interpreted as an automatic ‘green light’ for monitoring employees’ communications.

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