ECHR rules employee whose messages were monitored suffered breach of human rights

A ruling by the European Court of Human Rights means many businesses will need rethink their approach to the monitoring of private messages sent by employees during the working day.

Mr Barbulescu, a Romanian national set up a work-related Yahoo Messenger account at his employer’s request. After monitoring activity on the account, his employer found personal messages from Mr Barbulescu to third parties, including his fiancé. When confronted about this he initially denied personal use of the account. He was subsequently shown a transcript of many of the messages, and was dismissed. However, the transcripts included messages he had sent from his personal Yahoo Messenger account and included information about his health and sex life.

In a surprise decision the ECHR concluded that the employer breached Mr Barbulescu’s right to privacy under Article 8 of the European Convention of Human Rights. There is no right of appeal from this decision.

Online and instant messaging has become a ubiquitous feature of the modern workplace. Whilst employees are encouraged to use social media for work purposes, employers struggle to encourage legitimate and proportionate usage, whilst also controlling private or excessive messaging.

The employer in this case had policies clearly stating that personal internet use was strictly forbidden and which warned of the possibility of surveillance. Nevertheless, the court still found the monitoring to have breached the employee’s privacy.

An employer who doesn’t take this decision seriously will not only risk legal action by an employee, they may also find themselves in hot water with the Information Commissioner for unlawful processing of personal data, particularly when sensitive personal data is iinvolved. Employers should review as a matter of urgency their policies and practices surrounding the monitoring of workers electronic communications.