Surveillance of Internet usage in the workplace

By its decision of January 12th 2016, the European Court of Human Rights (hereinafter the “ECHR”) ruled that the monitoring of an employee’s use of the Internet did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life, the home and correspondence), and hence, his resulting dismissal was justified.

At his employers’ request, Mr. Barbulescu (hereinafter the “Employee”) created an email account for the purpose of responding to clients’ enquiries. Later, the Employee was informed by his employer that his email communications had been monitored and that the records showed he had used the employer’s system for personal purposes. The employer terminated the Employee’s employment contract alleging that he had breached the company’s internal regulations, which stated that “it is strictly forbidden to disturb order and discipline within the company’s premises and especially … to use computers … for personal purposes”.

In response to the allegations, the Employee claimed that the use of the internet had been professional only. This was rejected by his employer who explained that he had read the emails and knew that they were sent to the Employee’s girlfriend and brother.

The Employee brought a claim stating that his dismissal was unfair. His main argument was that his employer had breached his right to respect his private and family life (Article 8 ECHR).

However, the ECHR considered that even if Article 8 ECHR was applicable, because the employer’s behaviour was sufficient to engage the Employee’s “private life” and “correspondence”, it did not find it unreasonable that an employer would want to verify that the Employee was completing his professional tasks during working hours, especially because the employer had accessed the Employee’s account on the belief that it contained client-related communications.