Employees’ use of Internet at work | Hudson McKenzie

Personal communication at work may not qualify for protection as privacy

February 5, 2016 | Immigration, Latest Thinking, News

In the case of Barbulescu v Romania, the majority of the European Court of Human Rights (Court) has made a decision that allows employers to inspect and monitor employees’ use of Internet at work. Despite the Applicant (Barbulescu)’s assertion that such inspection had violated Article 8 of the European Convention of Human Rights (Convention), the Court found in favour of the Romania Government for letting the employer to base the latter’s dismissal claim on certain personal correspondence of the Applicant.

Facts

The Applicant was employed as an Engineer in charge of sales from August 2004 to August 2007. Upon his employer’s request, he created a Yahoo Messenger (Messenger) account for the purpose of responding to clients’ enquiries. He was then notified on 13 July 2007 that his communication on the Messenger had been monitored since 5 July 2007 and the record showed that he had used the Internet for personal purposes. The Applicant denied the allegation in writing, and was replied with a 45-page transcript listing out his personal communication on the Messenger, including 5 short messages that the applicant had exchanged with this fiancée on 12 July 2007 through his personal messenger account. He was then dismissed on 1 August 2007 for breaching the company’s internal regulations that prohibited employee to use computers at office for personal purpose.

Domestic Procedural History

Shortly after the dismissal, the Applicant brought a claim before the Bucharest County Court (County Court) that the decision should have been null and void because his employer had violated his right to correspondence protected by Romanian Constitution and the Criminal Code, where the Constitution guarantees the right to the protection of intimate, private and family life (Article 26) as well as private correspondence (Article 28), and that Article 195 of the Criminal Code sets out the penalty for unlawful opening or interception of other’s correspondence.

The County Court ruled in favour of the employee because the ground was one listed in the internal regulations, and that the Applicant had denied any personal use of the Messenger. Moreover, such inspection was seen to be the employers’ right to check the manner in which professional tasks were complete since the Applicant had to communicate a lot with customers. Together with an earlier dismissal of another staff of similar violation, the County Court ruled that the Applicant should have constructive knowledge about the inspection of the use of the Messenger, and that the correspondence was not within the private correspondence protected.

Subsequently, the Applicant appealed the decision, and the Bucharest Court of Appeal held in June 2008 that the inspection had achieved a legitimate aim to supervise the functioning of its business and was the only means to achieve the aim. The Applicant then made an application to the Court against these decisions.

ECHR Ruling

The Court agreed that the emails and communications intercepted by the employee were within the realm of protection of privacy and correspondence under Article 8 of the Convention. In a workplace setting, an employee can reasonably expect such correspondence to be private unless with prior warning of inspection and monitoring. The Romanian government have both negative duty of not intervening into the citizens’ private life and positive duty of preventing such intervention from happening. The Court would then need to look into whether the government’s decision had stroke a fair balance between the applicant’s right to respect for his private life and correspondence, and the employees’ interest.

In this respect, the majority held that the interception was reasonable and deferred to the decisions of the domestic court that the interception was perhaps the only means through which the employee could find out the Applicant’s violation.

However, the dissent thought that the interception could not be readily inferred from the internal regulations, and the Applicant should not have reasonably expected the inspection. The fact that the content of his personal correspondence with his fiancée being made public was a clear evidence of intrusion into his privacy, and that he should at least deserve compensation, if not nullifying the dismissal altogether.

Concluding Remarks

To fellow employees, this ruling does not seem to be good news. The implication from the case is that employers are entitled to inspect and check what you are doing over the Internet or even the computer in the office given that sufficient notice and warning has been given to the employees. Some would say that employees have nothing to be afraid of because this ruling simply reiterates that no personal matters should be involved at the office. However, this may have an adverse impact on employer-employee relationship because of the strong sense of distrust arising from the inspection.

As to employers, the ruling is yet to be a total defence for any Internet or computer surveillance. It is apparent from the judgment that certain notice or policy should be in place regarding the misconduct on the Internet or computer before an employer can have access to employees’ communication. Such policy must be made known to all employees specifically, and sets out the manner in which the Internet or the computer should be used and how the monitoring would be conducted.

If you suspect your employer have violated your right to privacy or your are not sure about whether an effective policy is already in place, please do not hesitate to contact one of our Employment Lawyers in London on +44 (0) 20 3318 5794 or via email at londoninfo@hudsonmckenzie.com.