No, Bosses Are Not Free To Spy On Our Emails: Comment On The Barbulescu Case

By Naomi Webber, Writer 19 Jan 2016

On Tuesday, in the case of Bărbulescu v Romania the European Court of Human Rights said that an employer had not been in breach of an employee’s right to privacy when they dismissed him for having used the company’s Internet for personal purposes during working hours in breach of internal regulations. The Daily Mail and the Sun both covered the case on their front pages, using lines such as: ‘Bosses were given the right to spy on staff emails’ and ‘Euro court ruling: Boss can snoop on your private emails’.

Let’s see what really happened…

Mr Bărbulescu worked for a private company in Romania between 2004-2007. He used a Yahoo account for communicating with clients. One day, he was told that his communication had been monitored, and he had been found in breach of company rules for using the account for private purposes. On denying this, Mr Bărbulescu was presented with a transcript of his messages including correspondence with his brother and his fiancée about his health and sex life. He was dismissed from his job for his breach of internal rules.

The court in Romania said the employer had been reasonable and that monitoring communications was necessary to establish if there had been a breach of the rules.

Mr Bărbulescu took the case to the European Court of Human Rights, saying that the Romanian courts had not respected his right to privacy contained in Article 8 of the European Convention on Human Rights when deciding his case.

In fact, contrary to much of the press coverage, the European Court of Human Rights takes employees’ rights to privacy very seriously. In previous cases it has said that employees usually have a ‘reasonable expectation of privacy’ in phone calls and emails that are made and sent from the work place. For example, in Copland v UK, an employee won a case when her private messages had been read, as it was not for a legitimate aim.

So, and this is crucial, in deciding if there had been a breach of Mr Bărbulescu’s human rights, the court had to consider whether or not he had a reasonable expectation that his account would not be monitored.

A reasonable expectation to privacy

The court said there was no violation of his right to privacy for two reasons:

It was not unreasonable for an employer to verify that employees were completing their professional tasks during working hours. In particular, the reason the employer had originally accessed Mr Bărbulescu’s account was to see client-related communications.

The Romanian courts had only used the transcripts as evidence that he had used professional email for private purposes during working hours, and the identity of the people with whom he had communicated was not revealed.

To summarise: in this very specific case of someone using their work emails for private correspondence, in direct breach of company rules, the Court has said that the reading of emails from a professional account by an employer does not breach a right to privacy.

What the decision is not…

photo-1423666639041-f56000c27a9aThis is not a licence for bosses to spy on private communication. We all have a reasonable expectation that our texts, emails, Facebook chats, WhatsApp messages, Tinder-use, or whatever else we do when we should be working will remain private. And that means that, following the approach the European Court has taken for a number of years, your boss is in fact strictly limited in his or her “right” to spy on your emails.

And, in any case, this judgment is not binding on the UK as the papers suggest. The case was against the Romanian government, so they are the ones that must follow the decision. When the UK signed up to the European Convention on Human Rights, it only agreed to “abide by” judgments which involved the UK. So Romanian judgments don’t bind the UK. At all.

The obligation on UK judges is to take the decision ‘into account’ when deciding similar issues – this arises from the Human Rights Act. That means they can follow it, or they may think the decision is based only on the specific facts. Or they may think it is a bad decision. The key point is they don’t have to follow it if they don’t want to.

What it means for you

So, should you be worried? It might be worth checking your company’s rules to see what is or isn’t allowed in terms of private communication. And some common sense about use of professional emails wouldn’t go a miss. But no, your boss has no “right” to spy on your emails.

Now get back to work!

Further sources

About The Author

Naomi Webber Writer

Naomi completed her law degree at Oxford and LLM at UCL. Since then, she has worked as a research assistant and undergraduate teaching fellow. She will commence pupillage in 2018.

Naomi completed her law degree at Oxford and LLM at UCL. Since then, she has worked as a research assistant and undergraduate teaching fellow. She will commence pupillage in 2018.