No Right to Monitor Employees’ Emails

September/October 2017

By Eliza Nash of Osborne & Wise

In Bãrbulescu v Romania, the Grand Chamber of the European Court of Human Rights, held that an employee’s Article 8 privacy rights had been infringed when his employer monitored personal messages sent on a work related Yahoo messenger account. The employee was dismissed for personal internet use at work, contrary to the employer’s IT policy. As part of its investigation the employer accessed intimate messages sent by the employee to his fiancée and his brother. Article 8 states that “everyone has a right to respect for his private and family life, his home and his correspondence.” The right covers letters, email and telephone conversations, including those taking place at work.

The Court stated that Domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications is accompanied by sufficient safeguards against abuse and cited various relevant factors, including notification of monitoring and the degree and extent of the intrusion (with a distinction drawn between monitoring the flow of communications and accessing the content of messages). Putting together all of the factors, the Romanian courts had failed to strike a fair balance between the relevant competing interests and had not adequately protected the employee’s right to respect for his private life and correspondence.

It is quite a complicated judgment but one of the key elements seems to be that whilst the employee had been informed of the employer’s strict internet usage policy, and had even signed a copy of the company notice reiterating the policy, he had not been told expressly that the content of his personal communications on work IT equipment could be monitored at any time.

In the UK, this area is already heavily regulated by existing legislation, including the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. These place important limitations on employers’ power to monitor their employees’ private communications, and provide employees with more effective remedies than attempting to rely directly on Article 8 of the ECHR. For more information and help with formulating/amending your policies in this area, please contact a member of the OW team.