The decision of the European Court of Human Rights about employee’s private use of a Yahoo Messenger account has hit the news in a big way over the last couple of days. We explain the legal rationale behind it.
Mr Barbulescu was employed and in Romania, and had been asked to create a Yahoo Messenger account so that he could respond to clients’ enquiries. His employer accessed the account in order to monitor his work, and discovered personal emails there. He was subsequently dismissed for breaching the company’s policy against using the internet for personal purposes.
How did Mr Barbulescu bring his claim?
Mr Barbulescu brought his claim against the Romanian Government, who ultimately had decided that he had been fairly treated. He claimed that the Romanian courts had infringed Article 8 of the European Convention on Human Rights (which is the right to respect for private and family life, the home and correspondence) by using his personal correspondence against him.
The ECHR accepted that Article 8 did apply in this case, but held that there was no violation of it. This was because they believed that the Romanian courts had struck a fair balance between Mr Barbulescu’s right to respect for his private life and correspondence, and the interest of the employer. They held that it was perfectly legitimate for employers to ensure that workers were completing their professional tasks. The employer in this case had acted in the reasonable belief that the Yahoo Messenger account contained only work items. Furthermore, their use of the personal material had gone no further than to prove the breach of the employment policy.
On the final analysis, the ECHR therefore concluded that the Romanian courts had struck a fair balance between Mr Barbulescu’s rights to respect for his private correspondence, and the interests of the employer.
This case and the coverage of it shows how much interest there is amongst employers in issues relating to their employees’ use of social media. The lesson is very clear: employers need to have policies – and to make their employees aware of them – which state in the clearest possible terms that use of the company systems accounts will be monitored, and that they should not expect any privacy when they are using them.