If an employer monitors its employees’ personal communications at work, does this breach their right to respect for private life? No, as long as the monitoring is reasonable and proportionate, the European Court of Human Rights has ruled in Barbulescu v Romania.
Mr Barbulescu worked as an engineer. He used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract, and when his employer discovered this accidentally, he was dismissed. Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his rights to privacy.
The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court highlighted the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised that it is not unreasonable for an employer to seek to verify that employees are completing professional tasks during working hours.
Despite recent reports in the press indicating otherwise, this does not mean that employers are automatically able to read employee’s private messages. A crucial point here was that Mr Barbulescu’s Yahoo account was not actually a private account at all, it was set up to answer clients’ queries. The messages, while personal, were not actually ‘private’ (by virtue of the fact that they were sent on the business account). So, while the Daily Star reported yesterday ‘WARNING: Your boss can now legally read every WhatsApp message you send at work’, headlines such as this should be taken with a very large pinch of salt.
