Contrary to what yesterday morning’s headlines may have led you to believe, there are still limits to how an employer can monitor employees' private messages. The recent European Court of Human Rights decision in Bărbulescu v Romania certainly does not permit unrestricted snooping.
In this case, Mr Bărbulescu worked for a private company as an engineer in charge of sales. His employer requested that he set up a Yahoo Messenger account to enable him to communicate and respond to client enquiries. In July 2007 he was informed that his Yahoo communications had been monitored and the results showed that he had been using the internet for personal purposes during working hours. Mr Bărbulescu denied the allegation and was subsequently shown transcripts of the messages which clearly contained personal and private communications. This usage was strictly against company policy and Mr Bărbulescu was subsequently dismissed.
Mr Bărbulescu argued that this was in breach of Article 8 of the European Convention on Human Rights, namely his right to a private life. However, it was held that there had been no such breach. Importantly, the employer had requested that Mr Bărbulescu create the account for professional purposes and had accessed it on the assumption that the information had been related to professional activities. The court held that it was not unreasonable for an employer to wish to verify that its employees were completing their professional tasks during work hours and, given the monitoring was strictly confined to his Yahoo messenger account, it was a proportionate and reasonable action for the employer to take.
While this case clearly pushes the boundaries of employer intrusion into social media, it does not give employers carte blanche to monitor employees' private social media and/or email accounts at will. Where an employer has a genuine reason to monitor an employee’s messages and provided it is proportionate to what it wants to achieve, this may be acceptable practice. It is, however, important to remember the justification for doing so still operates in fairly confined circumstances. With an increase of social media platforms being used for work purposes, such as company Facebook or LinkedIn pages, employers should ensure that they have a clear policy in place and that any monitoring is proportionate to the circumstances.