{team=146}Quick Summary:   In this judgment on workplace monitoring, the Grand Chamber of the European Court of Human Rights overturned an earlier judgment by the European Court of Human Rights. The original judgment potentially lowered the bar for employers to monitor the contents of employee’s workplace emails. The success of this appeal returned the bar for the monitoring of employee communications to where it had been before, specifically, that explicit prior warning must be given to employees prior to any level of monitoring, and that the monitoring must have a legitimate and justifiable reason for being undertaken.

Facts

This case revolves around an employee who had set up a Yahoo messenger account at the request of the company he worked for in order to answer clients’ queries. Mr Bărbulescu had been informed of and signed a copy of the internal regulations which stated that personal use of computers was “strictly forbidden”. A notice was subsequently circulated around Mr Bărbulescu’s office that said that employees must not spend their time “using the internet, the phone or the fax machine for matters unconnected to work or your duties”. He signed this notice at some point between 3 and 13 July 2007.

The company subsequently monitored and recorded the actual contents of the communications sent from its employees’ Yahoo accounts between 5 and 13 July. At 4.30 p.m. on 13 July 2007 Mr Bărbulescu was asked to explain why he had been using the internet to send personal communications from his work Yahoo account during work time. Attached were tables that showed that his internet usage was higher than that of his colleagues. He told them in writing that this extra usage was for work-related purposes only. At 5.20 the employer again asked him to explain his use of his account for personal communications and this time attached a forty-five page transcript of personal messages he had sent, some of an “intimate nature” to his fiancée.

Mr Bărbulescu informed his employer that in his view “it had committed a criminal offence, namely breaching the secrecy of correspondence”. He was then dismissed on 1 August 2007 for using work facilities for personal communications.

Mr Bărbulescu challenged the decision to dismiss him in the various Romanian courts and failed each time. He also attempted to raise a criminal complaint but the prosecutor’s office ruled that there was no case for the company to answer. After exhausting all the avenues open to him within the Romanian courts he lodged a case with the European Court of Human Rights (ECHR).

Original judgment of the European Court of Human Rights

The ECHR concluded, by six votes to one, that the Romanian courts had been right to dismiss Mr Bărbulescu’s case, saying that “there is nothing to indicate that the domestic authorities failed to strike a fair balance, within their margin of appreciation, between the applicant’s right to respect for his private life under Article 8 and his employer’s interests”. The judgment pointed to the fact that “the employer had accessed the applicant’s Yahoo Messenger account in the belief that it had contained professional messages, since the latter had initially claimed that he had used it in order to advise clients”. The ECHR also found that the “employers monitoring was limited in scope and proportionate” because it did not examine the other data and documents stored on the computer. Mr Bărbulescu then asked for his case to be referred to the Grand Chamber of the ECHR.

Ruling by the Chamber of the European Court of Human Rights

On 5 September, the Grand Chamber of the ECHR announced their majority ruling on this case, reversing the previous judgment on the case by the ECHR. There is no further appeal above this point so this judgment is final.

The Grand Chamber had to determine whether Article 8 was applicable to this situation and if so “whether the national authorities had struck a fair balance between the applicant’s right to respect for his private life and his correspondence and his employer’s interest”.  The Grand Chamber ruled that, “in the circumstances of the present case, Article 8 of the Convention [European Convention on Human Rights] is applicable”. They went on to say that whilst Mr Bărbulescu was aware that his use of the internet for personal reasons was not allowed, he was not informed that his messages would be monitored and actually opened. In their judgment the ECHR pointed out that “the domestic courts omitted to ascertain whether the applicant had been informed of the monitoring operation before the date on which it began”. The Grand Chamber ruled that the Romanian courts had failed to put enough weight on this particular issue, instead putting too much weight on the fact that he had broken company policy.

Mr Bărbulescu was merely awarded €1,365 in regards to costs for bringing his claim. Mr Bărbulescu had claimed €59,976.12 in respect of pecuniary damages and this was rejected because the court could not “discern any causal link between the violation found and the pecuniary damage alleged.” He also claimed €200,000 in non-pecuniary damages due to the loss of job opportunities, his fiancée leaving him, and a deterioration of his living conditions. This was also rejected as the court found that “the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damages”.

What does this mean for your business?

This judgment is not a major surprise. It merely served to bring the requirements for businesses to open and read employees correspondence back into line with where they had been before the original ECHR decision. This case does reinforce the idea though that policies regarding the monitoring of employees’ communications, in particular the actual contents of their correspondence need to be full and clear. A fundamental reason that Mr Bărbulescu’s appeal succeeded was because his employer had failed to explicitly set out the extent of the monitoring they would undertake before they undertook it.

If a business intends to monitor employees’ social media messages that they send whilst at work then they must set this out clearly in the respective policies. A clear policy, which must also comply with upcoming and current data protection requirements, will help limit employees’ ability to challenge employers’ right to do this sort of monitoring. However, this is not a guarantee is all situations and circumstances. When putting together this sort of policy, the ECHR highlighted six factors that domestic authorities, and thus employers, must consider regarding similar policies. These are:

• Making sure that employees are notified of the monitoring in a clear and explicit way, with advance notification of the monitoring;
• The extent of monitoring and the degree of intrusion. A distinction between monitoring the flow of correspondence compared to the contents of communications should be made clear;
• Whether there is a legitimate, and justifiable, reason for this monitoring and the degree of intrusion;
• Whether a less intrusive form of monitoring might be more appropriate;
• The consequences of monitoring for the employee; and
• Whether the employee has been provided with adequate safeguards.

These factors are very similar to the guidance already set out in the Information Commissioner’s Office’s published guidance on monitoring in the workplace. As well as highlighting the above factors it also places a lot of emphasis on the importance of carrying out a full impact assessment to determine if the benefits of monitoring justify the adverse affects of doing so; employers must also examine other possibilities or methods of monitoring that might be less intrusive. Provided that the guidance set out by the Information Commissioners Office is complied with it is unlikely that monitoring will be found to be unlawful.

Also, in its ruling, the ECHR highlighted that “an employers instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary”. This should be a reminder to employers that whilst you can restrict private life in the workplace to a certain extent, eradicating it is impossible and thus it should continue to be respected by employers.

All quotes are from the judgment of the Chamber of the European Court of Human Right’s unless otherwise stated.