Private messages sent during working time are not private

Mary Gavin

14 January 2016

The European Court of Human Rights has held in the case of Barbulescu v Romania that there is no violation of an employee's right to respect for private life and correspondence for sending private messages during working hours.

What is expected of an employee and an employer is usually set out in the contract of employment.  However a contract does not have to be in writing and terms can be established in a manner of ways, either expressly, implied or through custom and practice. It should not be that surprising that an implied term is that when an employee is at work they should devote all their time and attention to their work, not privately messaging friends or loved ones or using the internet for their own personal matters. Many employers have specific email and internet policies in place to counter such misuse.

In this particular case in which the judgement was handed down on the 12th January 2016, the employer’s internal regulations strictly prohibited employees from using the company’s computers and resources for personal purposes however, the parties disputed whether the applicant had been given prior notice that his communications could have been monitored and their content accessed and eventually disclosed.

The issue before the ECJ was whether the right to respect for private life and correspondence is breached if employers monitor employees' personal communications at work? The answer was a resounding no, subject to reasonableness/proportionality.

Mr Barbulescu was an engineer who used a Yahoo Messenger account, specifically set up for business purposes to send and receive personal messages with his fiancée and his brother.  His employer, discovering this accidentally, dismissed him considering it to be in breach of his employment contract.  Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal correspondence on the grounds it infringed his Article 8 right that is the right to respect for private life and correspondence.

The ECJ held that although Article 8 was engaged the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was fair.  The European Court was persuaded by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only that they were personal messages. Furthermore only the Yahoo Messenger account, which the parties agreed was set up for business purposes was accessed, not other documents and data stored on Mr Barbulescu’s computer.

The Court found “that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.”

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