Judgement on Privacy at the Workplace

In a lot of companies, employees are not allowed to use internet and email for private purposes. A new judgement of the ECHR now gives guidance on what employer and employee should be aware of.

New decision of ECHR

The Grand Chamber of the European Court of Human Rights (‘ECHR’) has released its judgment in Bărbulescu – v – Romania (5 September 2017). The case was about an employer (of the plaintiff Mr. Barbulescu) who monitored the paintiff`s email-communication. He found out that the employee sent and received private emails and then dismissed him.

In January 2016, the ECHR had decided that Mr Bărbulescu’s right to privacy had not been violated when the employer monitored his correspondence. However, he contested this judgment and requested that the Grand Chamber of the ECHR reconsidered the case, IAPP reports.

The judges now found that Article 8 of the European Convention of Human Rights (the right to respect for one’s private and family life, his home and correspondence) is applicable in this case and ruled that county courts had failed to protect Barbulescu’s right to a private life in the workplace.

Right to privacy vs. company`s interests

The issue whether private communication sent from a work-related account is allowed or not is one of the most discussed data privacy issues in companies nowadays. Some employers say that they want to allow the private correspondence because they want to “do something good” for their employees.

However, allowing private usage of the work email account is not without legal risks. And the Barbulescu-case shows that employers need to follow strict rules – even if the private use has not been allowed. In sum, the employee’s right to respect for private life and correspondence under Article 8 of the European Convention on Human Rights and the employer’s right to take measures in order to ensure the running of the company have to be weighed against each other.

Monitoring of employees allowed?

The case is so important for employers in the EU because the monitoring of an employee’s electronic communications by a private employer has never been part of an ECHR`s ruling. Thus, the decision gives guidance on what to focus on regarding this – highly discussed – topic.

The ruling especially deals with the question whether employees need to be informed about the monitoring. The Grand Chamber found that the employer did not inform Mr Bărbulescu of the possibility of the monitoring beforehand, let alone of its purpose, nature and extent, which was not lawful, arbeitsrecht-weltweit.de reports. The employer did neither check whether there were other ways of monitoring employees that would have been less intrusive than looking at the contents of private correspondence.

Employers need to follow rules

In the future, employers should be aware of the fact that they need to take certain steps before monitoring, i.e. inform employees about purpose and extent of email monitoring (will employer also look at the content of emails?). Furthermore, they should assess in advance whether a monitoring is really necessary (legitimate reasons) and consider the consequences of the monitoring.

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