The Employer informed the Applicant that his Yahoo Messenger Account had been monitored for eight days, which showed that he had used the Internet for personal purposes contrary to the Internal Regulations. The Applicant denied the same and was later presented with a forty-five pages transcripts of his communications on the Yahoo Messenger Account, including his conversations with his fiancée and his brother in relation to personal matters. The Applicant was subsequently dismissed for breach of the Internal Regulations.
Having failed to challenge the Employer’s dismissal decision in the Romanian Courts, the Applicant appealed to the ECtHR claiming that (1) the Employer’s dismissal decision was based on a breach of his “right to respect for his private life… and his correspondence” as protected under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”); and (2) the Romanian Courts failed to protect such right.
1. Was Article 8 of the Convention applicable?
2. If Article 8 of the Convention was applicable, had the Employer breached the same?
Was Article 8 of the Convention applicable?
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The ECtHR held that Article 8 of the Convention was applicable because the Applicant’s “private life” and “correspondence” falling within the meaning of Article 8 of the Convention were concerned mainly by the following:
1. the content of the Applicant’s communications on the Yahoo Messenger Account were purely private and relating to the Applicant’s health or sex life and fell within the scope of subsection 1 of Article 8 of the Convention; and
2. the transcript of the Applicant’s communications on the Yahoo Messenger Account was formerly tendered as evidence in the Romanian Courts contrary to subsection 2 of Article 8 of the Convention.
Had the Employer breached Article 8 of the Convention?
Having regard to the following, the ECtHR ruled that the Romanian Courts had not failed to strike such a fair balance and that there was no violation of Article 8 of the Convention:
1. as the Applicant claimed to have used his Yahoo Messenger Account only for professional purposes, the Employer’s access to the same in the belief that it only contained work-related messages was therefore legitimate;
2. the Employer’s monitoring, which was only restricted to the Applicant’s Yahoo Messenger Account but not other data or documents stored on his computer, was proportionate;
3. it was reasonable for the Employer to want to verify that the Applicant was completing his professional work during office hours;
4. the Applicant had been given prior notice of both the Internal Regulations and the possibility that the Employer could conduct internet monitoring. However, the Applicant failed to provide any convincing reasons for having used the Yahoo Messenger Account for personal purposes; and
5. as to the use of the transcript of the Applicant’s communications on the Yahoo Messenger Account as evidence before the Romanian Courts, the Romanian Courts had not attached particular weight to the actual content thereof. The Romanian Courts had only relied on the same to the extent that it proved the Applicant’s breach of the Internal Regulations.
On the one hand, this case reminds employers to have the following practices:
1. having in place clear internal regulations setting out what restrictions apply to employees’ internet usage (i.e. whether personal internet usage is completely prohibited or only limited in scope) and the circumstances and the way in which internet monitoring will occur;
2. ensuring that employees are aware of and understand the relevant internal regulations; and
3. ensuring that the scope of internet monitoring is proportionate and that every single monitoring is supported by a report setting out the grounds therefor, and limitations thereto.
On the other hand, however, employees are advised to adopt the following measures:
1. reviewing their employment contracts and staff handbooks to understand their employers’ internal regulations on personal internet usage and internet monitoring; and
2. using their own devices for personal communications.
However, it is noteworthy that the ECtHR has the discretion to approach each case with different facts and circumstances on a case-by-case basis.
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2016