Employer was entitled to access employee’s private Yahoo! messages (and to sack him)

January 13th, 2016

Employers very often wish to monitor how their employees are using work computing facilities during office hours. They may suspect wrongdoing, such as improper use of confidential client or business information, or accessing material which is prohibited by the employer’s policies. They may be concerned about employees using work facilities – and work time – for personal communications. Can the employer investigate by accessing the employee’s communications without their knowledge?

As always, the answer is: it depends on the circumstances. A new judgment of the European Court of Human Rights is, however, illuminating as to what sorts of circumstances may justify such actions by employers. The case is Barbulescu v Romania (application 61496/08), a judgment given on 12 January 2016.

In Barbulescu, the employer had asked employees such as the applicant to set up Yahoo! messenger accounts for work purposes. Its policies prohibited the use of work accounts for personal purposes. The employer suspected him of misusing his messenger account, so it monitored his messages for a period during July 2007 without his knowledge.

The employer accused him of using his messenger account for personal purposes; he denied this until he was presented with a 45-page printout of his messages, including those exchanged with his fiancée and his brother. Some of his messages were of an intimate nature, and the employer had also accessed his private messenger account (though it did not make use of the contents).

The applicant was sacked for breach of company policy. He challenged his dismissal before the courts. The employer relied on the transcript of his messages as evidence. The applicant argued that, in accessing and using those personal messages, his employer had violated his right to private life under Article 8 ECHR and that this vitiated his dismissal.

The ECtHR agreed with the applicant that, notwithstanding his employer’s prohibition on private use of company accounts, his rights under Article 8 ECHR had been interfered with when his account(s) and their contents were accessed and relied upon: see paragraphs 43-45.

The Court decided, however, that the employer’s actions were justified. See paragraphs 59-61:

“59  …the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.

60. 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.

61. Furthermore, the Court finds that the applicant has not convincingly explained why he had used the Yahoo messenger account for personal purposes…”

The Barbulescu judgment will no doubt be welcomed by many employers, but as pointed out above, such balancing exercises are highly fact-specific. This judgment shows that employees cannot expect their private communications on work channels to be sacrosanct, but it should not be interpreted as an automatic ‘green light’ for monitoring employees’ communications.

Robin Hopkins @hopkinsrobin

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