22 November 2015 5 min read

The European Court of Human Rights (ECHR) seemingly let the cat out of the bag earlier this year with its decision in Barbulescu v Romania. As expected, the media lit the touchpaper on the judgement with some no holds barred headlines:

“Warning: your boss can now legally read every whatsapp message you send at work” – daily star

“your boss can now read your personal email, facebook and whatsapp messages” – mirror

So we thought it best to set the record straight. Whilst the decision has allowed, in this instance, an employer to access personal messages, it is not a green light for employers to start snooping around on their employees.

The facts of the case

Whilst Mr Barbulescu’s (b’s) employers asked him to create a yahoo messenger account for responding to clients, his employer’s regulations also explicitly prohibited personal use of all company facilities. B’s employer subsequently accessed the account, which b had maintained was only used for professional purposes, and produced a transcript of all his communications.

B’s employment was terminated on the grounds he had breached the terms of his employment. B subsequently challenged this, claiming his employer had violated his right to correspondence, in a case that made its way up to the echr.

The ECHR treated this differently to previous cases of a similar nature, halford v the uk and copland v the uk, where personal use in some regard had been tolerated. Reviewing this case within the framework it was brought, the question the court needed to satisfy was; “was it unreasonable for an employer to want to verify that their employees were completing professional tasks during work hours?”

What does the decision really mean?

You’ll be able to guess by now, that there is more to this decision than meets the eye. With the typical smartphone owner spending 88% of their time using only 5 of the apps on their phone, giving most of their time to messaging apps, workplace privacy is becoming an increasingly vexed topic as technology blurs the lines between work and personal life.

Firstly, the decision in this case doesn’t give employers a carte blanche to go rummaging through employees personal messages. In fact, it could be argued that as the yahoo account was set up to answer client queries, it wasn’t a personal account at all.

Secondly, whilst b’s employers did access personal messages in the account, they didn’t go snooping through the rest of his computer and only did so on the assumption they were work-related. A fair assumption bearing in mind their working regulations prohibited personal use.

The echr has always promoted the view that private life is a broad concept, but a broad reading of this right doesn’t protect every activity. With personal use of company facilities banned, the court only needed to review the actions within the framework of the disciplinary proceedings. I.E. That the decision to terminate b was not based on the content of the communications, but the breach resulting from his conduct. Satisfied that this was the case, the court did not find an infringement on b’s rights.

The decision doesn’t grant employers immunity to look through employees whatsapp messages, facebook or review personal email accounts; but it does indicate they will receive some leeway when a restriction is put on the use of company property for personal use.

Is there anything I need to do?

Make sure that your communications policies include clear usage statements (both dos and don’ts) and are compliant with any local law. The contract of employment between you and the employee is not necessarily one single document. This can comprise of the contents of any offer letter, any verbal promises made by you to the employee that are intended to be part of the employment contract and other written terms and conditions applying to the job, such as those that might be contained under your staff handbook.

We work hard to make sure that you are legally compliant with contracts, policies and procedures that are user friendly and reflect your own culture. Our approach will also focus on what your businesses objectives are in order to ensure you get the most from your workforce. Why not contact us today to book your free consultation to discuss your legal requirements in further detail, we’ll be delighted to talk to you!

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Ryan Lisk

Ryan has helped a vast number of businesses protect and control their intellectual property as well as drafting and advising on consumer and commercial contracts.

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