Work internet monitoring not against employee's human rights, court rules
An employee dismissed for using internet facilities provided by his employer for personal use, contrary to company rules, has failed in a claim that his human rights were breached by the company monitoring his private communications.
The case was taken from Romania to the European Court of Human Rights in Strasbourg by Bogdan Barbulescu, who had been employed as an engineer in charge of sales and created a Yahoo Messenger account at his employer's request to respond to client enquiries. In 2007 he was told that records of his communications on the account, monitored over a nine day period, showed that he had used the internet for personal purposes, contrary to internal regulations. When the employee denied this, the company produced a 45 page transcript of his communications, which showed personal messages exchanged with his fiancée and his brother. He was dismissed for breach of rules which strictly forbade use of computers and other company equipment for personal purposes.
Mr Barbulescu argued that there had been unjustified interference with his private life and correspondence, contrary to article 8 of the Convention, that there were no procedural safeguards, and that the interference was not proportionate to the legitimate aim pursued.
The court accepted the domestic courts' assessment that the employer had acted within its disciplinary powers, since it had accessed the Messenger account on the assumption that the information in question had been related to professional activities, and that such access had therefore been legitimate. The content of the communications was not a decisive element in the domestic courts’ findings, since the transcript had been relied on only to the extent that it proved the disciplinary breach.
By six votes to one a chamber of the court found agaonst Mr Barbulescu. "While it is true that it had not been claimed that the applicant had caused actual damage to his employer", the court ruled, "... it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.
"In addition, the court notes that it appears that the communications on his Yahoo Messenger account were examined, but not the other data and documents that were stored on his computer. It therefore finds that the employer’s monitoring was limited in scope and proportionate...
"Furthermore, the court finds that the applicant has not convincingly explained why he had used the Yahoo Messenger account for personal purposes".
There was therefore no failure to strike a fair balance between the applicant’s right to respect for his private life under article 8 and his employer’s interests.