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Monitoring communications

Barbulescu v Romania

Back in 2016, the European Court of Human Rights (ECtHR) held that a worker in Romania who had been dismissed for his personal use of the internet at work had not been dismissed unfairly because of the employer’s monitoring of his internet usage.

Mr Barbulescu had sent messages to his brother and fiancée via his work-related Yahoo account. He later argued that, by monitoring his use of the internet and by using his Yahoo messages in disciplinary proceedings, his employer had breached his right to respect for private life and correspondence.

The ECtHR found that the employer had acted lawfully; there had been a proportionate interference with Mr Barbulescu’s right to privacy. But that decision has now been reversed by the Grand Chamber of the ECtHR, which is its final appeal court. It has decided that Mr Barbulescu’s right to privacy had been infringed.

The biggest point for employers to take from this case is that it can still be okay to monitor staff, but employees should know about the monitoring that you might carry out. In this case, Mr Barbulescu knew about his employer’s ban on the personal use of work equipment. However, he hadn’t been told about the type and extent of the monitoring that might take place, or that his employer might access the actual content of his messages.

What seems clear is that an employer should continue to take a cautious and rigorous approach where privacy rights are concerned. This should involve considering very carefully when, why and how monitoring should take place and ensuring that any such monitoring is justified. Workers must know where they stand on this, and the extent to which their privacy may be lawfully interfered with.

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