The monitoring of an employee’s use of the Internet may be justified where the monitoring is proportionate. Europeans may have to think twice before using the Internet for private purposes after the European Court of Justice decided in January 2016 that monitoring an employee’s Internet communication was justified and not in breach of Article 8 of the European Convention on Human Rights.
In a 6:1 the European Court of Human Rights held in Bărbulescu v. Romania that there was no violation of Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights because the employer’s monitoring of the employee’s Internet communications had been reasonable in the context of the particular case.
Employee dismissed for private Internet use
A Romanian employee was dismissed by his Romanian employer in 2007 for privately using Yahoo Messenger. The messenger account was created merely for business use by the employee.
The use of the messenger account for private purposes was in breach of his employment contract which imposed a complete ban on the use of the Internet for private purposes. As a result of this breach the employee was dismissed.
The employee challenged the dismissal and argued that the employer violated his right to confidential correspondence by monitoring his Internet activities. He claimed that the State of Romania had breached its positive obligation to preserve the employee’s right to respect for private life and correspondence under Article 8 of the Convention on Article 8 of the European Convention on Human Right.
Monitoring of an employee’s use of the Internet must be proportionate
The European Court of Justice had to decide whether the employee – who knew that he was not allowed to use the Internet for private purposes – had a reasonable expectation of privacy, i.e. that his communications would not be monitored by his employer.
The Court noted that Article 8 was affected by the employers monitoring of the employee’s Yahoo Messenger account. However, the right to respect for private correspondence was not absolute. It must be balanced with the Interest of the employer.
The simple fact that monitoring or surveillance of an employee’s Internet use conveniently serves the employer’s interest does not – by itself – justify an intrusion into staff’s privacy.
In this particular case, the employer had accessed the Yahoo Messenger account on the assumption that the communication related to professional activities of the employee. The Court found that the employers access to the employee’s Yahoo Messenger account was proportionate and therefore legitimate.
The Court also found that ‘it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours’.
What does that mean for employers of Europeans?
That does not mean that employers can monitor the Internet communications of their employees whenever they want. Clear policies have to be put in place. Staff needs to be made aware that their Internet activities may be monitored. In any case, the employer must act reasonable and proportionate.
The Data Protection Working Party – which is an independent EU advisory body – issued guidance on the issue of surveillance of electronic communications in the workplace and to evaluate the implications of data protection for employees and employers.
The Working Party suggests that the monitoring and surveillance of an employee should always be: “A proportionate response by an employer to the risks it faces taking into account the legitimate privacy and other interests of workers. Any personal data held or used in the course of monitoring must be adequate, relevant and not excessive for the purpose for which the monitoring is justified. Any monitoring must be carried out in the least intrusive way possible”.
#Monitoring of an employee’s use of the Internet