The European Court of Human Rights Guarantees the employer’s right to monitor the electronic communications of employees
The Court of Human Rights in Strasbourg recently ruled on one of the most contentious and litigious matters of the last few years: Can an employer access the contents of communications carried on by an employee using resources furnished by the employer for professional purposes as a way to ensure that such resources are being used correctly?
The Court, in its recent judgment of January 12, 2016 (“Case of Barbulescu v. Romania”), gave an affirmative answer to the question, ratifying the lawfulness, reasonability and proportionality of the employer’s action.
In this connection, the case analyzed by the Court can be summarized as follows:
- The claimant, a Romanian citizen who worked as an engineer in charge of sales, created a Yahoo Messenger account at his employer’s request. The purpose of the account was to attend to clients’ enquiries.
- The company’s internal regulations expressly prohibited the use of computer resources made available to employees (inter alia, computer and telephones) for personal purposes.
- The employer informed the claimant that it had monitored his Yahoo Messenger conversations, that the records showed that he had made use of the company’s computer resources to hold personal conversations and that, accordingly, it had decided to dismiss him.
- The national courts rejected the employee’s complaint against the dismissal on grounds that he had previously been informed of the prohibition against using the employer’s computer resources for personal purposes and therefore had no expectation of privacy whatsoever, and that the employer’s conduct was reasonable because it was the only way to monitor the employee’s correct performance of his job.
Having regard to the facts described, the European Court of Human Rights analyzed whether the monitoring of conversations held by the employee could entail a violation of article 8 of the European Human Rights Convention which, among other matters, guarantees the right to respect for private life and the privacy of communications and correspondence.
The Court rejected the existence of the claimed violation and took the view that, having regard to the various interests and rights in conflict, the employer’s actions were lawful and justified because:
- The employer acted within the bounds of the disciplinary power conferred upon it by the labor legislation applicable in Romania.
- The claimant used the Yahoo Messenger account for personal conversations, despite previously having been informed that the employer’s internal regulations expressly prohibited the personal use of computer resources, and did so during working hours.
- The transcription of the conversation was used only in the disciplinary proceeding, as evidence of the employee’s breach.
Both the conclusion of the Court and its legal grounds are completely in line with the case law of the Spanish Constitutional Court (i.e., judgment 170/2013, appeal for the protection of constitutional rights 2907/2011) and of the Labor Chamber of the Supreme Court (i.e., the judgment of October 6, 2011, appeal in cassation for a definitive ruling on a point of law 4053/2010) which, from the standpoint of the domestic legal system, had already admitted the monitoring of the use of computer resources made available to employees for professional purposes, provided that (i) it is proportional and reasonable having regard to the objective pursued and (ii) any expectation of privacy the employee might have has been removed by way of sufficient and reliable information regarding the policy on the use of the company’s computer resources and the monitoring of such use.
In practice, from the standpoint of human resources management by an employer, two fundamental conclusions may be drawn from the judgment:
- It is possible to ensure the correct use of computer resources made available to employees for exclusively professional purposes, even by way of monitoring the communications of those employees.
- In order for the foregoing action to be lawful, the employer must have prepared and served duly authenticated prior notice of the rules or policies on the use of the company’s computer resources, detailing precisely which uses are permitted and how the correct use of resources will be monitored.
Garrigues Labor and Employment Law Department