In a verdict that has attracted much criticism, the European Court of Human Rights (ECtHR) in Strasbourg earlier in January ruled that a company that read an employee’s Yahoo Messenger chats and messages sent during the time he was at work was acting within the law, and within its rights.
The case centred around a Romanian engineer, Bogdan Barbulescu, who had been using Yahoo Messenger on his work computer, during work hours. He had been using Yahoo Messenger for work contacts- but also had a second, private, Messenger account that he used to contact his family whilst at work. Having informed all staff that they were not allowed to send personal messages whilst at work, and having warned Mr Barbulescu in this regard previously, his employer had eventually taken the step of searching his work computer.
Whilst conducting their on-line search, the employer had read the messages on both the professional and the personal Messenger account. Mr Barbulescu was dismissed in 2007 for his breach of company policy. He took his former employer to court, claiming a breach of confidential correspondence and his right to private life under human rights law. Having lost his case in Romania’s domestic courts, he had appealed to the ECtHR.
In January, the Strasbourg court ruled against Mr Barbulescu. In their verdict, the judges fond that Mr Barbulecu had been in breach of company policies, and that his employer had every right to check a company provided device (the work computer). The firm also had every right to check on his activities whilst at work, and acted correctly when they examined his chat history, believing as they did that they were examining a work account only, Indeed, in their verdict, the ECtHR made little reference to the personal Yahoo Messenger account.
Further, as company policy in this regard had been clear to all employees, the ECtHR found that the engineering firm had acted proportionally and correctly, and that it was not “unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”.
The verdict now leaves an open door for employers who wish to snoop on employee’s computers, emails and communications whilst at work. However, aware of this risk, and of the potential of future breaches of civil liberties, the judges were at pains to state that company policies should be in place to prevent such overt and unfettered snooping of employees. Their verdict hinged on the facts of the case- that the device was a work – provided device, and that the management had been checking a work related account. However, the judges made little speciation as what their verdict would have been if the device had been a personal device.
Despite those caveats, there remains great concern regarding the verdict. Various bodies representing both employers and workers, and privacy campaigners all had a similar message that such snooping is still totally unethical in most cases, and for employers to avoid such snooping.
The European Trades Union Confederation released a statement saying that the verdict should not be seen as a “green light… to start snooping” on staff. In the UK, according to TUC General Secretary Frances O’Grady “Big Brother bosses do not get the best out of employees… Staff who are being snooped on are less productive and less healthy.” The Chartered Institute of Personnel and Development echoed this sentiment. Institute of Directors Director General Simon Walker was even clearer: “employees should not be subject to Stasi-style surveillance at work… We would strongly urge businesses not to read an employee’s personal messages, apart from in the most exceptional circumstances.”
Those bodies were joined by civil rights campaigners. Big Brother Watch said in response that “none of us should ever assume that what we do online during work hours or when using devices owned by our employer, such as computers, tablets or mobile phones, is private – but, equally, no employee should be in fear of being monitored by their boss.”
Whilst the verdict might now be in place, and a reference for employers when deciding whether to carry out such surveillance on their staff, employers should well remember that it is not binding.
The verdict was handed down by the European Court of Human Rights. Although its verdict is binding upon the nation named in the case (in this case, Romania), in most cases each nation interprets and applies ECtHR rulings as is deemed appropriate under domestic laws and customs. As such, the verdict is not legally binding in the UK- but is highly persuasive when used in court domestically, and is now a point of legal reference.
Indeed, in some ECtHR signatory nations, email and other surveillance of employees is already legal. As such, the judges were merely agreeing with Romanian domestic law in this regard, and upholding the employers’ legal rights to conduct such surveillance. The verdict makes it clear that it is not in breach of an employee’s human rights to be the subject of such surveillance, if the surveillance is in line with company policy, and national law (as it was in this case).
Although the case of Mr Barbulescu does seem to open the way for employers to snoop upon employees- that is in reality not the case. What the case does do is once again open and ignite the debate upon personal privacy, human rights, and personal and professional lives. That debate will not be ended as simply as Mr Barbulescu’s case was in Strasbourg.