Private Email at Work: Green Light (to snoop) or Red Herring?

From an employment law perspective, what are we to make of the 12 January 2016 decision in Barbulescu v Romania, which has been proclaimed in the more excitable areas of the media as a green light for employers to snoop on private email at work?

Let’s take a few steps back. Mr Barbulescu was dismissed on 1 August 2007. His first instance challenge to the dismissal failed, and his appeal against that decision was dismissed on 17 June 2008. So he took Romania to the European Court of Human Rights on 15 December 2008, leading to the present decision over 7 years later.

Mr Barbulescu’s employer had internal regulations prohibiting use of company resources for personal purposes. In defiance of those regulations, he was shown (after 8 days’ company monitoring) to have used his company Yahoo Messenger account for personal purposes. He claimed he did so only for professional purposes. The company showed him written evidence of his wrongdoing and dismissed him.

So after breaching company rules, being found out, lying to his employer and troubling the Romanian courts to no avail, Mr Barbulescu chose to take his native country to an external court, citing Article 8 of the European Convention on Human Rights (“dismissal based on a breach of privacy”) and Article 6 (“unfair proceedings before domestic courts”). With the latter being found to be manifestly ill founded, what would the ECHR make of the former?

The answer: although Article 8 was applicable, because the employer had engaged Mr Barbulescu’s private life and correspondence via the monitoring, the Romanian domestic courts had struck a fair balance. It was reasonable for the employer to want to verify that employees were completing their professional tasks during working hours. For what it was worth, the monitoring had only proved the fact of the private correspondence and had not gone into the contents.

Overall, it looks as if this decision changes nothing and tells us little we did not already know. If an employer’s policies on private email and internet use at work are clear and unambiguous, and reserve the right to monitor usage and in turn to dismiss for material abuse, there ought to be little reason to fear claims of inherently wrongful privacy violation. In any event, few employees may be as determined as Mr Barbulescu to explore every possible avenue of redress.

From an employee’s perspective, this decision is hardly a snoopers’ charter – it is more a matter of confirmation that workplace rules are there to be obeyed and that these particular ones are not going to be struck down by external principles.

On a final note, and without further comment, the ECHR’s press release for this decision concluded with the following sentence: “The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.”

 

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