January 20, 2016
Elizabeth Slattery and Ed Bowyer, lawyers for firm Hogan Lovells, wrote on Lexology about a recent case in Romania, on which the European Court decided “monitoring [an] employee’s email account did not breach privacy”. A sales engineer at a private company set up a Yahoo Messenger account “at his employer’s request so that “he could respond to clients’ enquiries”, and company rules “made it clear” computers were not to be used for personal reasons.
Three years after joining the company, the engineer was told by his employer that the account “had been monitored for a period of just over a week”, with records showing “he had used it for personal purposes on the company’s computer during working hours”. When challenging this, the engineer was presented with transcripts of “very personal” messages, before being dismissed for breach of regulations, and he took the case to Romanian courts before it went to the ECHR.
The courts in Romania “decided that there had been no breach of the Romanian Labour Code”, and the ECHR case, Barbulescu v Romania, aimed to decide “whether the employee’s right to private life and correspondence” under the European Convention on Human Rights, Article 8 had been infringed. The ECHR decided “there was no violation”, adding that Romanian law had “struck a far balance between employees’ rights and employers’ interests”.
It added that “it was not unreasonable for an employer to verify that employees were completing their professional tasks during working hours”, and the employer had accessed the account “thinking that it contained client-related communications only”, looking at the content “only in response to the employee’s challenge”. The two lawyers noted that in certain cases, particularly in the UK, the key issue is “often whether […] the employee has a reasonable expectation of privacy”.
In turn, they pointed out that data protection laws define how monitoring should proceed, with clear internet usage policies “essential”, and employers based in “different jurisdictions” need to be aware of how legal restrictions on such monitoring “may vary quite considerably”.
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