05:47, September 05 339 0 theguardian.com

2017-09-05 05:47:03
Romanian whose chat messages were read by employer had privacy breached, court rules

The European court of human rights has ruled that a man, whose employer read the personal messages he sent using a work account, did have his right to a private life breached.

Judges in the grand chamber sided with the Romanian, who claimed his right to a private life was not properly upheld by the country’s courts. He said they were breached when his employer checked up on chat logs from his professional Yahoo Messenger account that included both his personal and private communications.

The judges agreed by a majority of 11 to six that the Romanian courts had not struck a “fair balance” between Bogdan Bărbulescu’s right to a private life and his employer’s right to ensure he was following work rules when they sided with the latter last year.

An employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary”, a statement said.

The decision could form a significant legal precedent as it sets a boundary in employer-employee relations. UK judges are required to take the ECHR’s rulings into account, though they are not bound by them and they do not create law.

The case centred on the dispute between Bărbulescu and his employer after the latter read private messages he sent to his brother and fiancee from an online account he had been asked to set up for work purposes. The firm’s rules banned such use of online accounts.

He told his employer he had abided by those rules but, when the company checked his chat logs, it found both private and professional messages. He was subsequently fired and appealed to the Romanian courts, then the European court. Bărbulescu said the messages should have been protected by the right granted to him by article 8 of the European convention on human rights, which guarantees respect for private and family life and correspondence.

Because his employer had accessed the logs while under the impression all of the information would be work-related, the firm did nothing wrong, six of the seven judges sitting in the Strasbourg court in January said.

It was not “unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”.

The judges added: “The employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate. The court sees no reason to question these findings.”

The judgment issued in the higher chamber of the court on Tuesday, however, overturned that. The court found that Bărbulescu “had not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages”.

The judges said the Romanian national courts had not “adequately protected Mr Bărbulescu’s right to respect for his private life and correspondence and that they had consequently failed to strike a fair balance between the interests at stake. There had therefore been a violation of article 8”.

The reporting of the January ruling by some news outlets led to criticism from the Council of Europe, which oversees the European court. Elements of the British press in particular were accused of whipping up a “misinformed media storm” by producing “inaccurate scare stories”.

A spokesman for the body said: “Certain parts of the UK media sometimes have trouble getting their facts right when covering ‘Europe’. It’s understandable, to a certain extent. Europe’s institutions are complicated, journalists cover lots of different issues and they work to tight deadlines.”

He said that some journalists, “primarily, but not exclusively, from the UK” had portrayed the judgment as “giving bosses across the continent a new ‘right’ to snoop on all of their staff’s personal messages sent using Facebook, Twitter, WhatsApp, Gmail or any other platform ... It sounds scary, and it makes a good story, but it’s not true”.