Bosses

have limited rights to monitor employees’ private correspondence. Landmark

judgement delivered by the Grand Chamber of the European Court of Human Rights

in relation to monitoring of employees’ communications.

In a case decided last year, in the famous case of Barbulescu v

Romania, the ECHR had found that there had been no breach of the employee’s

right to privacy when his employer dismissed him over private messages sent at

work on the Yahoo messenger system set up by the same employer for work

purposes. The employee’s private online exchanges were being monitored and recorded

by his employer. Personal use, such as that made by the employee, was in

violation of the employer’s internal regulations. The employer had proceeded to

terminate his employment with the local Romanian county court, and the Court of

Appeal, declaring that his dismissal had been lawful.

The employee instituted proceedings before the ECHR claiming that

there had been a violation of his right to private life under Article 8 of the

Convention when the domestic courts had failed to revoke the decision of the

employer to terminate his contract, which decision was based on a breach of his

right to respect for his private life and correspondence.

The Court had held that

article 8 was indeed applicable to the present case, having regard to the

nature of the applicant’s communications and the fact that a transcript of

these communications had been used as evidence in domestic court proceedings.

The ECHR went on to determine whether the national authorities had struck a

fair balance between this right to private life and correspondence and the

interests of the employer. The ECHR considered that the courts had found that

the employee had committed a disciplinary offence by using the internet for

personal purposes during working hours. They also considered that the employer

had accessed the contents of the applicant’s communications after the employee

had declared that he had used the account only for work purposes. Moreover, the

monitoring activities had been limited only to the use of the Yahoo messenger.

It concluded that there had been no violation of article 8 of the

Convention.

Mr. Barbulescu’s case was referred to the Grand Chamber of the ECHR after

the Grand Chamber accepted his request for fresh consideration. The Grand

Chamber delivered its judgment on the 5th September 2017. It noted

that the employee had indeed been informed of the ban on personal internet use

but it was not clear whether the employee had been informed before the

monitoring of his communications that this monitoring was to take place. It

also did not appear that the employee was informed in advance about the extent

and nature of the monitoring activities taking place or about the possibility

that the employer could have access to the actual contents of his

communications. The Grand Chamber concluded that the domestic authorities had

not offered adequate protection to the applicant’s right to respect for his

private life and correspondence which resulted in a violation of article 8 of

the Convention.

What is interesting to employers is the specific guidance given by

the Court to the national courts in order to determine whether monitoring of

employees’ communications was justified. The courts are to consider the

following:

in advance of the monitoring;

of the monitoring and degree of intrusion;

legitimate reason of the employer to implement monitoring;

a less intrusive system of monitoring was available;

consequences of the monitoring for the employees and the use made by the

employer of the results of the monitoring;

the employee had been provided with safeguards which should ensure that the

employer cannot access the actual content of the communications unless the

employee had been informed in advance.

For more information in relation to Maltese employment law please

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