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When Can an Employer Access Workplace Instant Messages?

The European Court of Human Rights (ECHR), in Bărbulescu v Romania, has found that, where a fair balance is struck between an employee’s rights and the employer’s business interests, an employer is permitted to access employees’ instant messages in the workplace. The case arose from the termination of the plaintiff’s employment following a breach of his employer’s internal regulations, which banned the use of company resources for personal use. The plaintiff employee claimed that he had established an instant messaging account at his employer’s request and had only used the service for professional purposes. In response, he was informed that his instant messenger communications had been monitored for just over a week and the transcript showed that he had used the messaging service for personal purposes during working hours. His employment was subsequently terminated.

The employee challenged the termination of his employment before the Romanian courts arguing that his right to correspondence had been violated by his employer accessing his communications. The Romanian court rejected his complaint on the grounds that he had been informed of his employer’s internal rules in relation to the use of company resources. The employer’s monitoring of communications had been reasonable. 

The employee appealed this decision to the ECHR on the basis that his rights under Article 8 of the European Convention on Human Rights had been disproportionately breached, i.e., his right to respect for his private life and correspondence. However, the ECHR held there was no breach as the Romanian court had struck a fair balance between the employee’s Article 8 rights and the business interests of the employer.  It was not unreasonable to seek to confirm that employees were completing professional tasks during work hours. The ECHR also noted that the employer had accessed the instant messaging account on the basis that it believed it contained client-related communications only.

The case highlights for employers the increasing practical importance of putting in place a social media and/or electronic communications policy in the workplace so that employees are aware of the parameters which will apply. In addition, it is important to ensure that the contents of such policies are regularly notified to employees to ensure they are aware of the internal rules which apply and employees are provided with training, if considered necessary. Employers should ensure that any monitoring which may be carried out is undertaken in line with internal policy and data protection principles.

Contributed by Catherine O’Flynn and Nuala Clayton

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