ECHR sets out the circumstances under which employees messages can be monitored

In its decision dated 5 September 2017, the Grand Chamber of the European Court of Human Rights (ECHR) sets out the circumstances under which employers can monitor their employees’ personal electronic communications at their workplace. It also states under which circumstances employers can use the content of these communications in disciplinary proceedings.

In this case, an employee of a Romanian company had created an instant messaging account at the request of its employer and had been dismissed for using this account for personal purposes.

As justification of the dismissal, the employer provided a transcript of several personal conversations the employee had using the instant messaging account.

Upon request of the employee, the ECHR considered that « it must ascertain in the present case whether the national authorities performed a balancing exercise, in accordance with the requirements of Article 8 of the Convention, between the applicant’s right to respect for his private life and correspondence and the employer’s interests ».

In this respect, the Court had to outline the principles that are to be observed by the national authorities regarding the implementation of employees’ electronic communications monitoring by their employers.

First, the Court underlines that the employees shall be informed in advance of the scope and nature of any monitoring activities.

Secondly, when the employers have access to the electronic communications content of their employees, the latter shall also be informed in advance of such access.

In addition, the Court considers that in case employers use invasive measures to access the content of their employee’s electronic communications, employers shall give legitimate reasons to justify such a strict monitoring.

The Court also examined « whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the actual contents of the applicant’s communications » and took into account « the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings ».

In the end, the Court stated that « the domestic courts failed to determine, in particular, whether the applicant had received prior notice from his employer of the possibility that his communications on Yahoo Messenger might be monitored; nor did they have regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or to the degree of intrusion into his private life and correspondence. In addition, they failed to determine, firstly, the specific reasons justifying the introduction of the monitoring measures; secondly, whether the employer could have used measures entailing less intrusion into the applicant’s private life and correspondence; and thirdly, whether the communications might have been accessed without his knowledge ».

Finally, the ECHR concluded that the domestic authorities did not afford adequate protection of the employee’s right to privacy and confidentiality of his correspondence and that there has therefore been a violation of Article 8 of the Convention.


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