Firms must inform Employees of Work Email Monitoring - European Court decides


The decision marks the end of a lengthy appeal brought by a Romanian national centered on private correspondence that his former employer had intercepted and subsequently used in disciplinary proceedings that resulted in his termination in 2007. The judges found that the Romanian courts failed to protect the man's private messages because his employer had not previously alerted him that the company would monitor his account. His right to privacy, the judges declared, had been violated.

"However, the judgment recognises that there are legitimate reasons for monitoring employees' use of IT systems, and gives useful guidance as to how employers can tackle the issue in a lawful manner".

The European court in Strasbourg 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.

"Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary", it added. United Kingdom judges are required to take the ECHR's rulings into account, but they are not bound by them and they do not create law. He replied in writing that he had only used the service for professional purposes but was then presented with a transcript of 45 pages of his communications from July 5-12, 2007, 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 firm's rules banned private use of online accounts. The ECHR's Grand Chamber changed a previous decision of the same court from January 2016, which had found no violations of the Human Rights Convention in this case.

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James Froud, partner in the employment group at Bird & Bird, said the judgment did not bar employers from monitoring internet use entirely, but they "must take certain steps when assessing whether a measure to monitor is proportionate to the aim pursued, and whether the employee is protected against arbitrariness".

"The Grand Chamber judgement confirms that individuals have a right to privacy in the workplace". The top court found that Bărbulescu had not known that his employers would actually read his chat logs.

"It will hopefully remind employers that they need to think about these issues and be very clear with employees about what is and isn't permissible".

The ruling will become law in the 47 countries that have ratified the European Convention on Human Rights, meaning some members will have to adjust their national legislation. Britain enacted regulations in 2000, giving employers broad power to record or monitor employees' communications without consent, as long as they took reasonable steps to inform employees that their communications might be intercepted.