Employee messaging, technology and the erosion of privacy?

For reasons that shouldn’t be mysterious, many of us find the idea of our employers reading through our personal messages a little discomforting. The freedom to send the odd message from work to a friend or loved one, with the expectation that its contents remain private, is widely considered a vital one in an age where the chance to share a joke, article link or cooing sweet nothing is almost perpetually at our fingertips. Yet as technology blurs the boundary between our professional and private lives, many worry about its capacity to erode privacy altogether.

The media’s somewhat anxious response to a recent decision by the European Court of Human Rights echoes this concern. Indeed, the ruling, which held that a Romanian company had not breached the privacy of its employee by monitoring emails sent from his Yahoo Messenger account, might seem a perfect example of ever-encroaching surveillance. However, a closer look at the judgement tells a rather different story.

The applicant was dismissed in 2007, after his employers issued him with a lengthy transcript of messages he had sent to his brother and fiancée from a work computer during working hours. The account, which was set up at the request of his employers to allow him to communicate with clients, was subject to internal regulations prohibiting him from using it for private messaging.

The applicant challenged his employers’ decision in the domestic courts, ultimately seeking an appeal in the ECHR on the basis that his right to privacy under Article 8 of the European Convention on Human Rights had been breached.

In its reasoning, the ECHR emphasised that the employers had accessed the applicant’s Yahoo Messenger account in the belief that he had used it to advised clients. The Court highlighted that the employers’ disciplinary regulations expressly forbade the use of company resources for personal purposes, and noted that the actual content of the messages did not appear to be a decisive element in the domestic courts’ findings. The court went on to say that the employee had not convincingly explained why he had used the Yahoo account for personal purposes.

Generally, the court took the view that it was not unreasonable for an employer to want to verify that employees were completing their work during working hours. Since no documents on the computer other than the Yahoo messages were examined, the employers’ actions were considered to be proportionate and limited in their scope.

So, although the effect of the decision was to rule that the employers acted lawfully, its reasoning does not grant employers free rein to monitor employee messaging – contrary to what the more sensationalist headlines would have us believe, bosses do not have carte blanche to snoop on their employees.

For employers, the most important thing is to have a clear, thorough IT policy, which leaves employees in no doubt as to what is permitted and what is prohibited. The indispensability of technology in the modern workplace leaves no room for uncertainty as to how it should be used.


Editor’s note: You can also follow the legal updates from this case as they unfold via legal advice site Unlock The Law.

Matthew Pollock
Matthew is a trainee solicitor with Burness Paull LLP.
Matthew Pollock

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