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Monitoring Employees’ Use of the Internet

19th January, 2016

The European Court of Human Rights has ruled that an employee’s right under Article 8 of the European Convention on Human Rights, to respect for private life and correspondence, is not automatically breached if their employer monitors their personal communications in work.

In this Romanian case (Bărbulescu v Romania – 61496/08 [2016] ECHR 61) the employee had created a Yahoo Messenger account at the request of his employer in order to respond to client enquiries. He subsequently went on to use the account to send and receive personal messages, in breach of his contract of employment which explicitly prohibited the use of company computers for personal purposes. Following the employee’s denial that he had used the account for personal purposes his employer accessed his account and dismissed the employee for breach of contract.

The European court accepted that Article 8 was engaged. However, they also recognised the need for employers to be able to verify that employees are completing professional tasks during working hours. As an employer their actions in interfering with their employee’s right to privacy under Article 8 were reasonable and proportionate in the circumstances, as they did not access any additional information stored on his work computer.

It would be a mistake, however, to suggest that this judgement somehow gives employers a green light to snoop on employee’s personal messages. The Data Protection Act 1998 and the Regulations of Investigatory Powers Act 2000, which place restrictions on the ability of employers to monitor their employees’ private communication, remain in place. Employees continue to have a reasonable expectation of privacy, particularly in the absence of a specific ban on the use of IT facilities for personal matters.

Employers should ensure that they have clearly worded policies in place, which are communicated to all employees and adhered to, if they want to be able to monitor their employees’ use of the internet. If you have any queries regarding the implications of this judgement or would like us to conduct a review of your existing IT and social media policies please do not hesitate to contact Helen Watson on 01244 405565 or send an email to [email protected]

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