Employer monitoring private messages did not breach human rights

A Romanian employee’s human rights were not breached when his employer engaged in monitoring private messages, sent at work, the European Court of Human rights (ECHR) has ruled.

Mr Barbulescu was employed by a private company in Romania, he was an engineer working in the sales departments. His employer told him to set up a Yahoo Messenger account for work purposes so that he could respond to client enquiries. The company had in place rules on the personal use of the internet which in effect put in place a total ban on private internet use while at work.

In July 2007, Mr Barbulescu was told by his employer that his Yahoo Messenger account had been monitored and that evidence of private internet use had been discovered. When this was denied by Mr Barbulescu, he was shown a transcript of messages which included messages to his fiancée and to his brother, the content included references to his health and to his sex life.

Initially, Mr Babulescu brought proceedings against his employer in the Romanian courts, on the basis that his employer’s actions in monitoring private messages had breached his rights under Romanian law. When this failed he appealed to the ECHR on the basis that monitoring private messages was in breach of his Article 8 right to respect for private and family life, the home and correspondence. His appeal failed. While the court recognised that his Article 8 right had been engaged, his employer had acted reasonably and proportionately in monitoring private messages in these circumstances.

Mr Barbulescu had been informed of his employer’s policy on internet use and his employer had not set out to monitor his private messages. It was only when they examined the work related Yahoo Messenger account that they discovered the private messages, indicating a breach of company rules and regulations. Speaking to the BBC, Lillian Edwards professor of internet law at Strathclyde University said, “In this case, the employers say clearly that you are not to use the internet for anything but work. Although this is not popular, it is completely legal”. UK law regulates the extent to which monitoring at work can lawfully be carried out by an employer. Monitoring may be lawful in certain circumstances, including where an employer suspects a breach of its own rules and procedures. In order for an employer to demonstrate that monitoring was carried out lawfully, it will have to have informed employees that communications may be monitored, preferably in a policy.

Barbulescu v Romania [2016] ECHR

18 January 2016

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