Employers must inform staff if emails are monitored says the ECHR, in landmark case.

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Employers cannot ‘reduce private social life in the workplace to zero’, says the European Court of Human Rights (ECHR) in today’s landmark judgment.

Judges examined the case of Bărbulescu v. Romania, which concerned the decision of a private company to dismiss an employee after monitoring his electronic communications and accessing their contents. It also looked at the alleged failure of the domestic courts to protect his right to respect for his private life and correspondence.

The background

Bogdan Mihai Barbulescu was sacked for sending messages via the Yahoo messaging system in 2007. His employer had used surveillance software to monitor his computer activity.

When his employer asked him for an explanation, Bărbulescu replied in writing that he had only used the service for professional purposes, the court heard. His employer then presented him with a transcript of 45 pages of his communications, including messages he had exchanged with his brother and his fiancée relating to personal matters, some of the messages being of an intimate nature, the court was told.

The employer then terminated Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes. After this decision was challenged in a Romanian court by Bărbulescu, the judges ruled that the firm was within its right.

The Judgment

However, in today’s Grand Chamber judgment, the ECHR held, by eleven votes to six, that there had been: a violation of Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights.

It says that although it was questionable whether Mr Bărbulescu could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on internet use, of which he had been informed, an employer’s instructions ‘could not reduce private social life in the workplace to zero’.

A statement from the ECHR adds: “The right to respect for private life and for the privacy of correspondence continued to exist, even if these might be restricted in so far as necessary.”

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