Do Bosses Have Free Rein To Spy On Employees' Online Activity?


In its judgment released last week, the European Court of Human Rights (ECHR) have dealt with a case, when an employee was dismissed for using an instant messaging platform for personal means during working hours. The access to the respective Yahoo Messenger account was only permitted for professional purposes, via the employer's IT tools. Importantly, private chat conversations were pursued in breach of the company's internal regulation.

The main question raised by Bărbelescu v Romania case was whether or not, the employer breached Article 8 (1) of the European Convention of Human Rights (i.e. right to respect for private life and correspondence) by looking at the chat logs of the employee.

The Court concluded that no violation of Article 8 was committed. The key explanation: the employee insisted that he was not using Yahoo Messenger but for professional purposes, and the employer accessed his account in this belief.

Carte blanche or monitoring with limitations only?

One giving credence to recent media headlines could believe that employers, from now on, have free rein to check workers' private e-mail and chat messages. We are here to alert you that, contrary to this hint, the judgment does not constitute a blanket right for employers to monitor workers' private exchanges online.

Now, you might be interested to know, under what conditions employers can lawfully monitor their employees' private communication.

It is in the company's legitimate interest to verify that employees are dedicated to their professional tasks during office hours. By checking online activity, employers can easily provide proof of excessive time spent by their employees with personal issues or on non-work-related websites, including social media.

Therefore, upon certain circumstances, employees' privacy at the workplace may be restricted by the employer. In such cases, the employer is bound by a general proportionality requirement also specified by the Hungarian Labor Code[1]. Clandestine monitoring procedures are unlawful; the employer shall provide information regarding the technical tools applied for such purpose in advance, but the employer has no obligation to inform workers regarding specific checks. Other important principle is that the employees' private life cannot be monitored. Therefore, if the private nature of a message can be assumed...

To continue reading