The media was ablaze with articles early this year regarding this decision from the ECJ relating to the rights of employers to monitor their employees' online communications, including those via personal email and social media accounts. Many headlines gave the misleading impression that employers now had a carte blanche to review the private communications of employees. This is not the case. Rather, what the decision held is that, although the right to privacy is engaged by an employer's review of an employee's private communications, an employee's rights must be balanced against an employer's interests in ensuring that their employees are using work time to perform job related tasks.

The company monitored the employee's Yahoo Messenger account, accessing both his work account and a second personal account, and discovered that the employee had sent multiple messages regarding his health and sex life on company time.

In reaching its decision, the ECHR accepted that Mr. Barbulescu's rights to respect for his private and family life, his home, and his correspondence under Article 8 of the European Convention on Human Rights were engaged by his employer's conduct. However, the Article 8 right is not an absolute right. The ECHR focused on the fact that the company only accessed Mr. Barbulescu's private communications because it believed that they contained professional communications.

The decision makes very clear that any monitoring of employee's private and personal communications must be for a legitimate purpose and be a proportionate means of achieving that purpose. In this case, that meant that any monitoring of employee internet-use was focused on company resources, tied to a company policy, limited in scope, and proportionate.

For the full article on this decision, please click this link to Proskauer's International Labor and Employment Law blog.