ECHR rules companies must warn employees of email snooping

Companies can monitor employees’ communications over work devices, if those employees are notified beforehand without unduly infringing their privacy, the European Court of Human Rights said in a ruling on Tuesday defining the scope of corporate email snooping.

In a judgement in the case of a man fired 10 years ago for using a work messaging account to communicate with his family, the judges found that Romanian courts failed to protect Bogdan Mihai Barbulescu’s private correspondence because his employer had not given him prior notice it was monitoring his communications.

Courts in general have sided with employers on the issue. The ruling sets boundaries for e-monitoring versus privacy rights, said Stephanie Raets at Belgian law firm Claeys & Engels Antwerp.

“The most important lesson learned from the judgment is that, although an employer may restrict the employees’ privacy in the workplace, it may not reduce it to zero,” she said.

The company had presented Barbulescu with a week’s worth of chat transcripts in which he talked with his brother and fiancée about personal matters on Yahoo Messenger as evidence of his breach of a company ban on such personal use.

The European court in Strasbourg ruled by an 11 to6 majority that Romanian judges, in backing the employer, had failed to protect Barbulescu’s right to private life and correspondence.

The chamber found that Mr. Barbulescu had “not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages,” it said in its ruling.

The court also said there had not been a sufficient assessment of whether there were legitimate reasons to monitor Barbulescu’s communications. There was no suggestion he had exposed the company to risks such as damage to its IT systems or liability in the case of illegal activities online.

The court noted that the intersection of technology, privacy and workers’ rights was a rapidly evolving area of law.

“This set of requirements will restrict to an important extent the employers’ possibilities to monitor the workers’ electronic communications,” said Esther Lynch, confederal secretary of the European Trade Union Confederation.

The chamber ruled that countries should ensure that companies’ efforts to monitor employees’ communications, are “accompanied by adequate and sufficient safeguards against abuse.”

“Although it does not generally prohibit such monitoring, it sets high thresholds for its justification. This is a very important step to better protect worker’s privacy.”

“This is a complicated case which will still leave employers confused as to how extensively they can monitor employee communications,” said Jonathan Chamberlain, an employment law expert at Gowling WLG, a British law firm. “The court itself seemed divided over how to balance employees’ privacy and employers’ security, and it is still not clear what exactly constitutes proportionality and fair warning.”



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