European judges rule in favour of worker email privacy

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Sep 06, 2017
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The European Court of Human Rights found that Romanian courts had failed to protect a company employee's right to private life and correspondence

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Companies must take clearer steps to protect employees' privacy and tell them in advance if their work email accounts are being monitored, Europe's top court ruled yesterday. 

The judges in the European Court of Human Rights found that Romanian courts failed to protect the privacy of a man who was fired ten years ago for using a work messaging account to communicate with his family. 

They ruled that Romanian courts had failed to protect Bogdan Barbulescu's private correspondence because his employer had not given him prior notice that it was monitoring his communications. 

Email privacy has become a hotly contested issue as more people use work addresses for personal correspondence while employers demand the right to monitor email and computer usage to ensure staff use work email appropriately. 

Courts in general have sided with employers on this issue but yesterday's ruling sets a high threshold for companies to justify monitoring. 

The company had presented Mr Barbulescu with printouts of his private messages to his brother and fiancée on Yahoo Messenger as evidence of his breach of a company ban on such personal use. He had previously told his employer in writing that he had used the service only for professional purposes. 

The Strasbourg court ruled by an 11-6 majority that Romanian judges, in backing the employer, had failed to protect Mr Barbulescu's right to private life and correspondence. The court concluded that he had not been informed in advance of the extent and nature of his employer's monitoring or the possibility that it might gain access to the contents of his messages. The company was not named in the ruling. 

The judgment could lead to more clarity on the scope of corporate discipline, James Froud, a partner at the City of London law firm Bird & Bird, said. "We may see a shift in emphasis, with courts requiring employers clearly to demonstrate the steps they have taken to address the issue of privacy in workplace, both in terms of granting employees 'space' to have a private life whilst clearly delineating the boundaries." 

Sarah Ozanne, an employment lawyer at the City office of CMS, said: "As with the earlier decision by the ECHR this decision does not fundamentally change the law." 

She argued that the law "stills requires a fair balancing of interests between the employee's right to privacy and the employer's right to take steps to ensure the smooth running of its company. What the Grand Chamber has done is clarify that such a balance is unlikely to be struck where the employee has had no notification of the potential monitoring of their emails at work. 

"Employers should ensure that they provide clear notification to staff on the use of company email and other systems – including the proposed monitoring of such use – if they wish to avoid similar challenges under Article 8."

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