A recent European Court of Human Rights (ECHR) judgment has ruled that the monitoring of an employee’s personal emails over a professional Yahoo account was not a breach of Article 8 (right to respect for private and family life and correspondence).
In the case of Barbulescu v Romania the employee, Mr Barbulescu, was asked to create a Yahoo account by his employer for the purposes of responding to clients queries. Mr Barbulescu was notified on 13 July 2007 that his employer had monitored his Yahoo communications and found that he had been using it for personal use. Mr Barbulescu had been using the Yahoo account to send personal emails to his fiancée and brother, and when he responded to his employer to say that his use of the Yahoo account was for business only they produced the transcripts of his personal email communications. Mr Barbulescu’s employment was subsequently terminated for breach of his employer’s internal regulations which prohibited personal use of company property.
Mr Barbulescu claimed that his employer had breached Article 8 of his human rights and that the domestic court had failed to protect his rights. The ECHR found that there had been no violation of Article 8 on the basis that it was not unreasonable in the context of disciplinary proceedings for his employer to want to verify that their employees were completing their professional tasks during working hours. As a result, access to Mr Barbulescu’s professional Yahoo account had been in the belief that it contained client communications and had therefore been legitimate.
Whilst this decision is binding on all members states that have ratified the European Convention on Human Rights, it does not mean that employers are able to freely pry on their employee’s personal communications. The facts of this case are very specific and involve an employee who was using an account created under professional circumstances for personal use. There were also regulations and monitoring of use policies provided to employees so there was an expectation that employees were aware of the company’s policy regarding personal use of company property. The employer’s access was justified on the basis that it needed to know the content in order to distinguish personal from professional emails to make a determination on the disciplinary breach. The employer did not examine other data or documents that were stored on the computer and therefore its monitoring was held to be limited in scope and proportionate.
The key take away from this case, which aligns with existing case law, is that a balance needs to be struck between an employee’s right to respect for private life under Article 8 and his employer’s interests. Employers must be careful not to misinterpret the pro-employer judgment in this fact specific case as a green light to monitor employee’s emails.