European court: Employer can monitor personal communication, sometimes

A Romania man said his company violated his right to private correspondence. A European court disagreed.

Story highlights

  • The European Court of Human Rights rules that employers' actions must be "proportionate"
  • An employee had argued that his legal right to private communications had been breached
  • Company presented employee with a transcript of his Yahoo Messenger communications

(CNN)Can your employers read the private communications you send while you're at work?

Well yes they can, under some circumstances, the European Court of Human Rights has ruled.
The case concerns that of a Romanian man, Bogdan Mihai Barbulescu, who worked for a private company in Bucharest as an engineer in charge of sales, according to the court judgment, issued Tuesday.
At his employer's request, Barbulescu created a Yahoo Messenger account to respond to client inquiries.

A false denial

In July 2007, the employer -- not identified in the judgment -- told the employee that a record showed he had used the Internet for personal reasons, contrary to company policy.
Barbulescu, in what turns out to have been an error, replied in writing that he had used Yahoo Messenger only for professional purposes.
In response, the company presented him with a 45-page transcript that showed he had communicated with his fiancee and his brother.
Barbulescu was fired. He sued, saying the company had violated his right, protected by the Romanian Constitution and its criminal code, to private correspondence.
And up the ladder of courts the case went until it reached the European Court of Human Rights.
In essence, the court ruled that employers can take "a proportionate response." The monitoring must also pass three other tests: transparency, necessity and fairness.

A dissenting judge defends right to Internet expression

The employer had said that Barbulescu was made aware in advance of possible monitoring.
The court reasoned further that as Barbulescu had denied using the Internet for private purposes, the employer would have no other way of knowing whether company policy had been violated.
And because the employer monitored only Yahoo Messenger, and did not examine other data and documents on the computer, the response was "limited and proportionate."
One of the court's eight judges issued a partially dissenting opinion, saying that "in a time when technology has blurred the dividing line between work life and private life ... the employer's right to maintain a compliant workplace and the employee's obligation to complete his or her professional tasks adequately does not justify unfettered control of the employee's expression on the Internet."