The case of Barbulescu v Romania, in which the European Court of Human Rights gave judgment on 12 January 2016, was widely claimed in the press to have given the green light to employers to monitor their employees' emails for personal use. It is true that the employer's monitoring of the employee's emails was upheld by the ECHR in that case, but the facts were somewhat unusual and the actual decision was more nuanced.
Mr Barbelescu worked for a company in Bucharest as an engineer in charge of sales. His employer asked him to create a Yahoo Messenger account for responding to clients' enquiries. The company had a policy that "It is strictly forbidden to disturb order and discipline within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes." When the employer informed Mr Barbulescu that it had monitored his Yahoo Messenger communications over the course of a week and that it considered he had used the account for personal purposes in contravention of this policy, he replied in writing that he had only used it for professional purposes. The employer responded with a 45 page transcript of his Messenger communications for that week, including messages with his brother and his fiancee that contained intimate personal information about his health and sex life. The employer disciplined Mr Barbulescu and dismissed him for unauthorised personal use of the internet.
The ECHR held by a majority that Mr Barbelescu's right to privacy for his correspondence under Article 8 had been engaged, but that the interference had been proportionate within the State's margin of appreciation. Previous cases that had gone the other way were distinguished on the basis that in those cases the employer had tolerated some personal use of the internet. The Romanian courts in this case had considered it important that the employer accessed the Yahoo Messenger account in the belief that it contained only professional communications (as the employee had claimed). It was not unreasonable for an employer to want to verify that employees are working during working hours. The monitoring was limited in scope and therefore proportionate.
Whilst the Barbeslescu case is an example of an employer's monitoring of an employee's emails being upheld, it actually held that the right to privacy applies, and the monitoring was only justified on the basis of the strict policy forbidding personal use and the employee's specific denial of any breach of that policy. Most employers in the UK do allow some personal use of work computers and telephones, and in such cases a clear policy that they will be monitored to check there is no abuse needs to be clearly communicated to employees and any such monitoring needs to be proportionate.
The Information Commissioner's Employment Practices Code provides some useful guidance to employers on monitoring communications in Part 3.
