In the recent European Court of Human Rights judgment of D. Barbulescu v Romania, the Court ruled that it may be permissible to monitor an employee’s use of the internet, subject to the principles of proportionality and reasonableness.
Mr. Barbulescu, a Romanian national, was employed as an engineer for a private company and at his employer’s request created a Yahoo Messenger account for the purpose of responding to clients’ enquires. On the 13 July 2007, Mr. Barbulescu was informed by his employer that his Yahoo Messenger communications had been monitored for a two week period. During that period, it was discovered that he had been exchanging messages with his brother and fiancée about his health and sex life and Mr. Barbulescu was shown copy transcripts of these communications. On the 1 August 2007, Mr. Barbulescu was dismissed from his employment for breach of the company’s internal regulations, which prohibited the use of the company’s resources for personal purposes.
Mr. Barbulescu challenged his employer’s decision in the domestic courts, which did not find in his favour. In a final decision by the Court of Appeal, it was held that Mr. Barbulescu’s rights under Article 8 of the European Convention of Human Rights (the right to respect for private and family life) had not been violated as his employer’s conduct had been reasonable and the monitoring of his instant messages was the only method of establishing if there had been a disciplinary breach.
Mr. Barbulescu then filed an application with the European Court of Human Rights and the case was heard by a Chamber of seven judges.
The Court noted firstly that it was not unreasonable that an employer would want to verify that employee were completing their professional tasks during working hours and Mr. Barbulescu’s employer had accessed his communications in the belief that they contained client-related communications. Secondly, the Court noted that when Mr. Barbulescu’s case went before the domestic courts there had been no mention by the courts of the actual content of his communications. Instead, the domestic courts had only used his communications to prove that he had used the company’s computer for his own private purposes during work hours.
Accordingly the Court found that the domestic courts had struck a fair balance between Mr. Barbulescu’s rights under Article 8 and the interests of his employer and accordingly found that Mr. Barbulescu’s rights under Article 8 had not been violated.
So what does this mean for employees?
This judgment will not be popular with employees as it highlights that if an employee uses their company’s internet facilities then they must be mindful of the fact that their employer can access their internet communications if it is used during working hours. However, that being said employers must ensure that they have appropriate internet and email policies in place and ensure that all employees are aware of these policies. As if employees are not aware of these policies, and they are subsequently dismissed for inappropriate use of company resources, then the employer could possibly face an unfair dismissal claim.
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