In the recent case of Barbulescu v. Romania, the European Court of Human Rights (ECHR) has considered the question of whether the monitoring of employees' use of the internet and their personal communications sent whilst at work infringes their right to respect for private and family life, entrenched within Article 8 of the European Convention on Human Rights.

Barbulescu v. Romania [2016] ECHR 61

In this case, the claimant, Mr Barbulescu, a Romanian national, used his business Yahoo Messenger account, which had been for the purpose of responding to clients' enquiries, to send and receive personal messages to his fiancée and brother. Such messages included private topics such as his health and sex life. Using the internet for personal purposes was against the employer's policies, and the claimant knew this. When his employer accidentally found out about his action, the claimant was dismissed. His resultant claim was dismissed by the Romanian County Court on the basis that his employer had complied with the Labour Code provisions on disciplinary proceedings. In particular, the claimant had been duly informed of his employer's regulations prohibiting the use of company resources for personal purposes.

When the claimant's appeal was also unsuccessful, he applied to the ECHR, arguing that the Romanian courts should have excluded all evidence of his personal communication from the legal proceedings on the basis that to consider such evidence would constitute a breach of his right to privacy.

The ECHR' s decision

The ECHR found that, whilst the claimant's right to respect for private life and correspondence had been engaged, the Romanian courts were entitled to look at the evidence in order to determine whether the dismissal was justified. The question to be determined was whether Romania had struck a fair balance between the claimant's right and his employer's interest.

In reaching this decision, the ECHR placed emphasis on the fact that the judgment of the Romanian court did not make reference to the precise content of the personal messages which it considered, merely the fact that the messages were personal. The Romanian court's judgment, in the opinion of the ECHR, struck the right balance between recognising the need for employers to be able to verify that their employees are, in fact, working during their working hours, whilst still respecting those employees' right to privacy. Furthermore, when the employer had accessed the claimant's messaging account, it had done so in the belief that it contained only client-related communications, since that is what it was intended for. It wasn't, in essence, simply snooping.

In considering proportionality, the ECHR also considered the fact that the employer had not sought to access any other information stored on the claimant's computer. It had gone no further than reasonably necessary in the circumstances and the claimant had been informed in advance that his messages would be monitored.

Comment

Provided the monitoring of employees' use of the internet and their communications sent during work time is reasonable and proportionate, it may be permissible. However, how the UK courts will interpret these requirements of reasonableness and proportionality when faced with different circumstances and whether or not the courts will seek to fetter this ability to monitor remains to be seen. A balance will need to be struck between ensuring that employees are not breaching their employment contracts and preventing unfettered snooping. What further remains to be seen is whether messages sent from personal devices whilst at work could also be relied on as evidence of breach of the employment contract, since in this case the computer and computer systems were the property of the employer. In this case, the employer benefited from having clear communication monitoring polices and procedures in place which had been previously notified to the claimant.