On 12 January 2016, the European Court of Human Rights (the "ECHR") ruled that no violation of Article 8 of the Convention (the right to respect for private and family life) had been committed in a case concerning a Romanian employer and an employee. The employee had been dismissed by his employer for using his work-related Yahoo email account to send private messages during working hours, in breach of internal policies. The private messages were detected due to monitoring activities undertaken by the employer. The employee challenged the dismissal in domestic courts, but the Bucharest County Court dismissed the employee's complaint and the Bucharest Court of Appeal upheld the judgment. Based on these decisions, the ECHR was, inter alia, faced with the question of whether or not the State of Romania had failed to preserve the right to respect for private and family life under Article 8 of the Convention.
Since the employee was employed by a private company, the ECHR was required to examine whether the State of Romania, in the context of its positive obligations under Article 8 of the Convention, had struck a fair balance between the employee's right to respect for private life and correspondence and the employer's interests. The ECHR held that the monitoring activities were proportionate and limited in scope, based on the assumption that the email account was used for work-related purposes. Moreover, the ECHR held that it is not unreasonable for an employer "[...] to check that its employees are performing their professional duties during working hours". Accordingly, the ECHR found that the domestic courts had struck a fair balance between the employee's right to respect for private life and correspondence and the employer's interests, within their margin of appreciation.
The judgment of the ECHR, illustrates the difficulties between an employee's right to personal integrity and the employer's legitimate interest to prohibit improper conduct during work hours. The judgment does not give Swedish employers an unfettered right to monitor their employees' online activities. Instead the judgment confirms that an employer that has implemented clear policies and instructions regarding the use of the employer's IT equipment is entitled to take proportionate monitoring actions to ensure that such polices and instructions are complied with.
Comments from a Finnish perspective:
The privacy of communication enjoys strong protection in Finland. As a general rule, employers are not entitled to monitor or access employee e-mails. An employer may only access an employee's work-related e-mails in exceptional cases when the employee is absent from work and strict procedural requirements and prerequisites are observed. However, the employer is not entitled to access or read an employee's private e-mails under Finnish law. It remains to be seen whether the judgment of the ECHR gives reason to reconsider the balance between employees' and employers' interests in this respect.