Why your private messages may not be so private anymore

Why your private messages may not be so private anymore

The European Court of Human Rights has just delivered its decision in a case concerning an employer in Romania who accessed an employee’s Yahoo Messenger account, accessed and printed personal messages between the employee, his fiancée and his brother, some of them intimate and containing details about his sex life and dismissed him.

The printed messages were used by the employer in the disciplinary proceedings leading up to the dismissal and the content became widely known to other staff.

The employee’s unfair dismissal claim failed so he claimed that his right to privacy had been violated. The ECHR has dismissed his claim.

The case has been well-publicised in the media, where some have latched on to it as giving employers a, “snooper’s charter” to trawl through workers personal email and messaging accounts and sack them if they discover anything lurid or offensive.

As usual, the truth is somewhat less sensational but that doesn’t of course sell newspapers!

Two key facts ultimately defeated the employee’s claim.

First, he was instructed by his employer to set up the Yahoo Messenger account for work purposes.

Second, the employer had adopted a written internet use policy which clearly prohibited the use of the internet facilities provided by the employer for personal purposes.

The case does not therefore give employers the automatic right to access private email or other electronic communications of its employees. Such activity could still breach the right to privacy. Whether or not it does will depend on the factual background in each case and the existence (or not) of a suitably worded policy can be a determining factor.

For anyone interested in the finer details, see Bărbulescu v Romania – 61496/08 [2016] ECHR 61 (http://www.bailii.org/eu/cases/ECHR/2016/61.html)

Andrew Hayward

Owen White Solicitors

If you would like specific advice on this subject, or in relation to any other employment issue, please do contact us on 01753 876800 or law@owenwhite.com