To Eye Worker Email, Employers Must Notify, European Court Rules

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By Stephen Gardner

A company can snoop into workers’ emails if it reasonably suspects they are breaking the rules by using company systems for private communications—but it must give prior warning of its intent to monitor them, the European Court of Human Rights ruled Sept. 5.

The court, 11-6, held that Romanian national authorities failed to ensure that a company didn’t violate a complaining worker’s rights to respect for private life and correspondence under Article 8 of the European Convention on Human Rights.

The ruling, which reversed a January 2016 decision of a lower court chamber, reinforces the need for companies doing business in Europe to make employees aware of their workplace communications policies, including giving notice that such communications may be monitored if there is a justified basis to suspect that policies have been violated.

The Strasbourg, France-based court, which hears cases related to alleged violations of the convention, said that employers can monitor the communications of employees suspected of sending private emails during work time. But companies must notify employees of the intention to carry out monitoring, explain their objectives, have a legitimate justification for monitoring, and minimize the examination of the communications’ contents, the court said.

The lower chamber had ruled that a Romanian company was justified in dismissing Bogdan Mihai Barbulescu, a Romanian national who brought the case in 2008 after being fired the year before for alleged excessive use of work time for personal communications.

European Court of Human Rights spokeswoman Nina Saloman told Bloomberg BNA Sept. 5 that Romanian courts would be obliged to respect the ruling when judging similar cases. In the other 46 countries that are signatories to the convention, the ruling “will have to be taken into account,” or those countries could be brought before the court for privacy violations, Saloman said.

No Covert Monitoring

Companies that want to monitor the electronic communications of employees should “consider putting into place a robust privacy program and choose the least privacy-invasive means possible,” Anna Pateraki, a data protection associate with Hunton & Williams LLP in Brussels, told Bloomberg BNA Sept. 5.

Peter Van Dyck, an intellectual property and data protection partner with Allen & Overy LLP in Brussels, told Bloomberg BNA Sept. 5 that the court “helpfully reaffirmed principles” with which companies already know they must comply.

In the decade since the case arose, understanding of workplace privacy has evolved with guidance from several privacy bodies in Europe, so most companies have a good grasp of the principles they should follow when monitoring employee communications, Van Dyck said.

To contact the reporter on this story: Stephen Gardner in Brussels at correspondents@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

For More Information

The judgment is available at http://src.bna.com/seU.

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