Monitoring of employees’ communications

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A recent case in the European Court of Human Rights has far-reaching consequences for employers.

THE EUROPEAN COURT OF HUMAN RIGHTS On 5 September 2017 delivered judgment in the case of Barbulescu v Romania [61496/08] which is set to have far reaching consequences for employers. The decision comes against a backdrop of litigation instituted by the appellant, Mr Bogdan Mihai Barbulescu, in 2007 against his employer following its monitoring of personal communications that he sent over an instant messaging service to his brother and fiancé. Following the appellant’s complaint that his employer’s actions constituted a criminal offence, his contract of employment was terminated.

Case Background

The appellant was a sales engineer in the Bucharest office of a Romanian private company between 2004 and 2007. As part of his duties, he had been requested by his employer to create an instant messaging account on Yahoo Messenger as a means of facilitating customer enquiries. The appellant already had a personal instant messaging account with Yahoo at this time.

Between 5 and 13 July 2007, the employer recorded the appellant’s communications on the messaging service, following which the appellant was summoned by his employers who contended that sending personal messages using company resources constituted a breach of the company’s internal regulations.

Company regulations stated that personal use of computers was strictly forbidden. These regulations did not go as far as to state that the employer could actually monitor the employee’s communications. An information notice was then circulated to employees of the Bucharest office on 3 July 2007 which stated that the internet was not to be used for matters unconnected to work or the employee’s duties. The notice stated that the employer has a duty to supervise and “carefully” monitor employees’ work which may result in punitive measures being taken against the employee.

On 13 July 2007, the employer summoned the appellant to account for his personal use of the messaging service. The employer had compiled a forty-five-page transcript of the appellant’s instant messaging conversations with his brother and fiancé, some of which were intimate in nature. On 1 August 2007, the appellant’s contract of employment was terminated.

Article 8 of the European Convention of Human Rights

Article 8.1 of the ECHR states that “everyone has the right to respect for his private and family life, his home and his correspondence”.

The appellant brought an action before the Bucharest County Court arguing that an employee’s telephone line and email communications in the workplace came within the scope of “private life” and “correspondence” and were therefore protected under Article 8 of the European Convention of Human Rights (“the Convention”). The County Court dismissed his application and deemed the employer’s decision to dismiss him to be lawful.

He appealed this to the Bucharest Court of Appeal on the same grounds, additionally claiming that the information notice that had been circulated on 3 July 2007 gave no indication that the employer could monitor employee’s communications.

The Court of Appeal upheld the initial findings and went on to hold that “the employer has a right and duty to ensure the smooth running of the company and, to that end, [is entitled] to supervise how its employees perform their professional tasks”. The Court of Appeal went on the hold that “it cannot be maintained that this legitimate aim could have been achieved by any other means than by breaching the secrecy of his correspondence”.

The appellant appealed this matter before the Fourth Section of the European Court of Human Rights. On 12 January 2016, it was held by six votes to one that there had been no violation of Article 8 of the Convention.

The matter ultimately came before the Grand Chamber (“the Chamber”) of the ECHR. The Chamber considered the interpretation of “private life” and how it may extend to include professional activities or activities taking place in a public context. The Chamber stated that restrictions on an individual’s professional life may fall within the scope of Article 8 if the restrictions have repercussions on the manner in which the individual constructs his or her social identity by developing relationships with others.

The Chamber noted that it is in the course of working life that an individual has significant, if not the greatest, opportunity to develop relationships with the outside world. It followed that communicating through an instant messaging service from the workplace is but one of the means through which an individual can lead a private social life. Furthermore, “correspondence” can include telephone calls and e-mails, even if they have been sent from a business premises.

The Chamber held that the employee’s messages that he sent on the instant messaging network from his work computer were therefore within the scope of Article 8 of the Convention.

Compliance with Article 8

In assessing the employer’s actions and whether they complied with Article 8 of the Convention, the appellant submitted that the nature of the instant messaging service in question was for personal use, despite the employer deciding it to be used for professional purposes. Furthermore, he argued that the messages in question were part of a “small harmless conversation” from which no profit was derived and no damage was caused to the employer. He also submitted that the line between personal and professional life can be unclear given modern day working conditions.

By International and European standards, the data subject must be informed before any monitoring activities take place. It was argued on behalf of the respondent that the employees had in fact been notified by the employer of their computers being monitored. The Chamber accepted that the appellant was aware of the ban on personal internet use as prescribed in the company’s internal regulations, but it was unclear whether the appellant was on notice of the monitoring in advance of it actually taking place. The appellant argued that he received no warning of internet use and that if he had, he would not have disclosed such personal information on the instant messaging service.

While it was accepted that the recording of the communications occurred between 5 and 13 July 2007, it could not be ascertained with any degree of certainty when the appellant had become familiar with the information notice in which the employer notified the work force of the monitoring activities. The Chamber concluded that it was not apparent that the appellant had been notified of the extent or nature of the monitoring or that the employer could view the actual content of the communications in advance of it actually taking place.

It was ultimately held that the domestic courts had failed to determine whether the appellant had received prior notification that his communications on Yahoo Messenger would be monitored as well as the degree of intrusion into the appellant’s private life and correspondence, specifically whether a less intrusive method of supervision could have been adopted by the employer. Therefore, there had been a violation of Article 8 of the Convention. However, the Chamber did not make an award of damages.

It held that the National Courts had failed to strike an adequate balance between the appellant’s right to a private life and correspondence, and the employer’s interests. This does not provide a causal link between the violation of Article 8 and any financial damage suffered by the appellant.

Implications for Employers

This decision of the Chamber has safeguarded the employee’s right to privacy while curtailing the circumstances under which employers may seek to implement restrictive measures on employees. On this point, the Chamber held that an employer’s restrictions cannot reduce private social life in the workplace to zero. Restrictions may only be so far as necessary so as to prevent damage being incurred by the company such as damage to IT systems, illegal activities online and trade secrets being disclosed.

Safeguards on such restrictions include the necessity to notify the employee of such a restriction and that it be proportionate in so far as the amount of intrusion into the employees’ privacy is concerned. In other words, is a less intrusive method of employee supervision available? There must also be sound and legitimate business reasons for the need to do so. Furthermore, the potential consequences of breaching a company’s internal regulations needs to be brought to the employee’s attention in advance as must the punitive measures and the procedures to be followed.

In light of this decision, employers need to review their policies and procedures currently in force and ensure that all they are clearly set out and understood by their employees.

Copyright © McKeever Rowan Solicitors, 19 September 2017.

This article is a general recital of the decision on the subject and is not intended to be a complete statement of the Law. Specific legal advice must be sought on a case by case basis. For further information, please contact Maurice Dockrell.

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