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Monitoring an employee’s Messenger account found not to be a breach of the right to privacy
03 February 2016

The European Court of Human Rights (ECtHR) has handed down its decision in the case of Barbulescu v Romania.

This case concerned an employee in Romania, who had his Yahoo Messenger account monitored by his employer. The account had been set up on the employer’s request to engage with clients. The employer had strict rules in place preventing any personal use whatsoever of such accounts, and these rules along with the possibility of surveillance were communicated to Mr. Barbulescu.

Having monitored the account, the employer found that the employee had been using the account to communicate with his brother and fiancée on such topics as his health and sex life. The employer subsequently confronted Mr. Barbulescu and dismissed him.

The Romanian courts found that the dismissal was fair, as the employee had been given reasonable notice of both the rules and the surveillance. Mr. Barbulescu appealed to the ECtHR for a breach of his right to privacy under Article 8 of the European Convention on Human Rights.

The ECtHR, found that whilst his rights to privacy had been engaged, they had not been breached. It was reasonable for the employer to verify that employees were working during working hours, and the interference with Mr. Barbulescu’s right to privacy was limited in scope only to the Yahoo Messenger account, and was therefore proportionate.

With the changes in how employees use technology, the surge of social media and new Bring Your Own Device policies, this case helps to provide a little more clarity on employer’s rights to monitor their employees' use of the internet and acts as a useful reminder of the importance of clear social media and internet usage policies. However, employers should be cautious and ensure that they check the wording of their policies; most of which are unlikely to strictly prohibit any personal use of the internet whatsoever. Furthermore, employers should be reminded of rules regulating such interference under the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. The right to monitor may not be quite as clear as the case suggests…

For more information about how this case affects your employees or to find out more about how the Employment team can help you please contact Darren Smith on 0118 952 7112 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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