Notification of email checks required

A recent ruling by the European Court of Human Rights has provided further specific clarification of companies’ responsibilities in respect of their employee email policies. Katie Ash, Head of Employment Law said, “The ECHR ruling in case of Bogdan Bărbulescu could shape extent to which firms can monitor employees’ private communications”. In essence, the court ruling says that not only must a company policy inform employees that they reserve the right to monitor employee emails, but they must also let employees know when they are doing so.

The company had presented Mr Bărbulescu with printouts of his private messages to his brother and fiancée on Yahoo Messenger as evidence of his breach of a company ban on such personal use. He had previously told his employer in writing that he had only used the service for professional purposes.

Although local courts found nothing wrong with the company's decision to terminate the employee, the European court found that Mr Bărbulescu's private correspondence could not be intercepted because his company had not given prior notice that it was monitoring his communications.

This ruling comes after European data privacy authorities ruled that bosses may not sift through workers' social media accounts unless for narrowly-defined, work-related purposes. In a guidance statement, they indicated that “Employers should not assume that merely because an individual's social media profile is publicly available they are then allowed to process those data for their own purposes. A legal ground is required for this processing, such as legitimate interest."

Although the ruling has no direct effect in British or EU law, experts say that it will establish a significant precedent in the evolution of digital privacy rules at work.