The European Court of Human Rights (ECtHR), by a majority of 6 to 1, held that an employer could monitor and access personal messages sent by an employee during work hours from his Yahoo Messenger account. The ECtHR held that the employer had a legitimate right to monitor the messages to verify that the account was only being used for professional purposes. It concluded that the employer’s monitoring was limited in scope and proportionate, as the messages on the employee’s Yahoo Messenger account were examined, but not other documents stored on his computer. Accordingly, the ECtHR held that the employer had not violated the employee’s right to respect for his private life and correspondence under Article 8 of the European Convention on Human Rights (the Convention).
Mr Barbulescu at the request of his employer had set up a Yahoo Messenger Account to be used for work purposes. Contrary to the company’s internal IT policy Mr Barbulescu had accessed the account to send personal messages to his brother and fiancé. Mr Barbulescu’s dismissal by his employers was upheld by the national courts in Romania. Appealing that decision Mr Barbulescu argued that Article 8 of the Convention (the right to respect for a person’s private life and correspondence) extended to email communications and that the national courts had failed to protect this right.
The ECtHR found that no violation of Article 8 had occurred because the employer had monitored the account in a way that was both limited and proportionate. Mr Barbulescu had used the messenger account for personal purposes which was prohibited by internal regulations.
In arriving at its decision the ECtHR referred to its earlier decisions of Halford v the United Kingdom and Copland v United Kingdom. In Copland, the ruling suggested that a warning was required to be given to employees when monitoring communications and that this expectation of privacy included emails and internet usage. However, the ECtHR drew a distinction between the cases of Halford and Copland and Mr Barbulescu’s case because in both Halford and Copland, the employer had at least tolerated the use of the telephone for personal use.
Drawing from the case of Copland and the Data Protection Convention, the ECtHR held that because no warning was given to Mr Barbulescu he did have a reasonable expectation of privacy. Despite this, it was held that a fair balance had been struck by the state between Mr Barbulescu’s rights and the power and scope of his employer to monitor communication within the disciplinary proceedings.
Click here to read the full judgment.