Opinion

Employers monitoring emails - The risk

24th October 2017

Recently, the European Court of Human Rights (“ECHR”) Grand Chamber, overturned the decision of the ECHR concerning the rights of businesses to check an employee’s private messaging application.

In Barbulescu v Romania, the employee in question registered a Yahoo Messenger account upon the instruction of his employer. The purpose of the account was to allow the employee to communicate with clients. However, he was permitted to use it for both professional and personal conversations. The employer suspected that the employee was using the account for purely personal reasons. On that basis, the employer ordered the monitoring of the account and obtained transcripts of the conversations. In the decision of the National Courts, it was held that the employee was informed of the monitoring and that the employer had no other means of proving the use of Yahoo Messenger for personal purposes. The National Court therefore viewed the monitoring as legitimate and proportionate. The ECHR agreed with this approach.

The Grand Chamber of the ECHR then went on to consider the decision in further detail and after consideration, reached a different decision. The Grand Chamber found that the employee’s right to private life (Article 8) had not been properly upheld. However, the employee was not awarded damages and the Grand Chamber commented that “the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant”.

Employer Considerations

The Grand Chamber have quite arguably laid down an important decision in the case of Barbulescu. The Grand Chamber raised the concern that the employer in this scenario did not properly inform the employee of the manner in which the communications were going to be monitored. The employee was not aware of the possibility of his employer reviewing the actual content of the message.

Monitoring private communications is difficult territory and employers will often face difficulty in trying to establish the legitimacy of such a practice. That being said, in some scenarios and where an employee is utilising a business messaging account for personal purposes, there are a number of factors that an employer should consider if it chooses to implement some form of monitoring:

  1. Whether the employee has been given advance notice. In normal circumstances, this notice should be clear about the nature of the monitoring;
  2. Whether it is simply the flow of communications which is being monitored or the actual content of the messages and to what extent;
  3. Whether the employer has legitimate reasons to justify the monitoring which takes place. The bar is higher if the content of the messages is accessed;
  4. Whether less intrusive monitoring could have taken place, i.e. if the employer could have achieved its aims without actually accessing the content;
  5. Whether the employee was aware of what the monitoring could be used for, i.e. if the employee didn’t know the messages might be used to sack them, this may weigh against the employer; and
  6. Whether there were adequate safeguards in place to protect the employee, including preventing the employer from accessing the content of the messages until the employee has been notified of this possibility.

Should you have any doubts or concerns in relation to potential breaches of data protocol, you should contact your Higgs adviser.

 

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