Romanian whose messages were read by employer 'had privacy breached'

[HARDY]

A European court of human rights judgment has bolstered the rights of employees to a significant degree of privacy when sending and receiving workplace emails.


The surprise decision by the Strasbourg appeal court, overturning an earlier ruling, will force employers to give more explicit warnings to staff if they want to monitor internet use.


The case, which relates to a Romanian engineer who was sacked in 2007 for exchanging messages on an office account about his sexual health with his fiancee, will set a far-reaching legal precedent across Europe..


By an 11 to six majority, judges in the grand chamber sided with Bogdan Bărbulescu , who claimed his right to a private life was not properly upheld by Romania’s courts. He claimed it was breached when his employer checked up on chat logs from his professional Yahoo Messenger account that included both his personal and private communications.


The ECHR judges agreed that the Romanian courts had not struck a “fair balance” between Bărbulescu’s right to a private life and his employer’s right to ensure he was following work rules. His right to privacy, the judges declared, had been violated.


An employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary”, the ECHR grand chamber judgment said.


The case is likely to be examined carefully by lawyers as the ease of modern communications blurs boundaries between work and free time. It may help demarcate new contractual boundaries in employer-employee relations. UK judges are required to take the ECHR’s rulings into account.


The case centred on the dispute between Bărbulescu and his employer. The company read private messages he sent to his brother and fiancee from an online account he had been asked to set up for work purposes. The firm’s rules banned such use of online accounts.


He told his employer he had abided by those rules but, when the company checked his chat logs, it found both private and professional messages. He was subsequently fired and appealed to the Romanian courts, then the European court of human rights. Bărbulescu said the messages should have been protected by the right granted to him by article 8 of the European convention on human rights, which guarantees respect for private and family life and correspondence.


In January, the main ECHR court in Strasbourg found by a majority of six judges to seven that the firm had acted reasonably when it accessed the email logs while under the impression all of the information would be work-related.


The latest judgment, issued in the higher chamber of the court, reversed that conclusion. The court found that Bărbulescu had not been informed in advance about the monitoring and that the Romanian courts had not adequately protected his right to respect for his private life and correspondence.

Commenting on the ruling, Pam Cowburn, communications director at Open Rights Group in London, said: “The European court’s ruling is welcome. In some workplaces, it may be necessary for emails to be monitored, but if employers are going to do so, they should make staff explicitly aware of it.”

Tomaso Falchetta, head of policy and advocacy at Privacy International, said: “The grand chamber judgment confirms that individuals have a right to privacy in the workplace … As the boundaries of work and private life become even more vague, particularly with the rise of the so-called gig economy and the exploitation of the personal data of individuals working for such companies, this judgment offers some important protections to employees’ right to privacy.”


James Froud, a solicitor at the law firm Bird & Bird, said: “It will be interesting to see whether this decision opens the floodgates to similar claims in the UK and what view judges take in each case in the light of it. UK courts have for some time had to grapple with the conflict between the right to privacy and employers upholding internal discipline.”


Despite finding that Bărbulescu’s rights under article 8 of the convention had been violated, the court declined to award him any compensation, saying that the ruling was “sufficient just satisfaction”.