Bosses can snoop on private messages, court rules

Luxembourg - Bosses can snoop on workers’ emails including personal messages with loved ones during working hours, the European Court of Human Rights ruled in a case brought by a Romanian man fired after his employer spied on his private Yahoo! chats.

“It is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours,” the court in Strasbourg, France, ruled Tuesday.

While the case dates back to 2007, the ruling comes at a time when governments and courts around the world are grappling with how to balance the right to privacy with the need to protect national security in the wake of Islamist terror attacks such as those in Paris last year.

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The court’s decision will also certainly guide the European Union’s top tribunal in future cases and rulings, said lawyers.

“This decision is significant for a number of European countries” as it legalises reliance on private communications to influence workplace decisions, said Michael Burd, joint head of employment at Lewis Silkin LLP in London. “There’s been a very strict division between employers’ ability to look at private stuff and employers’ ability to look at company stuff and this decision will break that down.”

‘Using Yahoo’

“What’s significant about this case is that they were allowed to use the content, not simply the fact of using Yahoo,” said Burd.

Bogdan Mihai Barbulescu took his case against Romania to the human rights court in 2008, arguing that his employer’s decision to end his contract was based on a violation of his rights to respect for his private life and correspondence.

Barbulescu, who worked with his former employer as an engineer in charge of sales from 2004 to 2007, was asked to create a Yahoo Messenger account to answer clients’ queries. In July 2007, he was informed that his chats had been monitored over several days, showing he had breached company rules by using the service also privately. A 45-page transcript also included a few messages he had exchanged with his fiancee.

“The employer’s monitoring was limited in scope and proportionate” and in addition, the employee hadn’t “convincingly explained why he had used the Yahoo messenger account for personal purposes,” the European court said. “There is nothing to indicate that the domestic authorities failed to strike a fair balance.”

‘Liberal Stance’

“In my view, the court is taking a very liberal stance,” said Tom De Cordier, a lawyer at CMS DeBacker in Brussels.

“Employers should be careful not to draw too general conclusions from this decision. Much of the court’s decision seems to be based on the fact that the employee had claimed that the relevant communications were of a professional nature.”

The ruling highlights the need for workers to beware of the pitfalls of using social media and e-mail at work, said Claire Dawson, an employment lawyer at Slater and Gordon in London.

“Some employers allow for ‘reasonable personal use’ of company systems,” Dawson said. “Others impose a complete ban. The advice to employees is clear: check what your employer’s policy is and operate within it.”

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