Monitoring of e-mail and internet: ECHR urges for caution
On Tuesday 5 September 2017, the Grand Chamber of European Court of Human Rights has announced a judgment in the Bãrbulescu case.
Mr Bãrbulescu was terminated after his employer had discovered through monitoring that he had been using Yahoo Messenger during working hours for personal purposes, which was prohibited by a company policy. The termination was confirmed by the Romanian employment tribunal.
Violation of privacy
The ECHR has now ruled that the national courts had violated Mr Bãrbulescu’s right to privacy (article 8 of the European Convention on Human Rights), because the national courts had failed to determine:
- whether Mr Bărbulescu had received prior notice from his employer of the possibility that he might be monitored;
- whether he had been informed of the nature or extent of the monitoring;
- which were the specific reasons justifying the introduction of the monitoring measures;
- whether the employer could have used less intrusive measures; and
- whether the communications might have been accessed without his knowledge.
Is this judgment relevant for Belgium?
Yes, in the sense that it emphasizes once again the importance of having a solid Internet & E-mail Policy in place, which gives you as an employer the right to monitor the use of internet and e-mail, in accordance with Collective Labour Agreement nr. 81. This policy informs employees that they may be monitored and under which circumstances such monitoring may occur.
Our advice: implement this policy now, before you actually need to use it!
MargaCaproniAttorney at law Counsel
Marga Caproni is a member of the Loyens & Loeff Employment & Benefits Practice Group in Belgium, heads the Pensions Team and is a counsel in our office in Brussels.T: +32 2 743 43 51 E: firstname.lastname@example.org
StéphanieDe SmedtAttorney at law Associate
Stéphanie De Smedt is a member of the Loyens & Loeff Litigation & Risk Management Practice Group in Belgium and a key member of the firm-wide Privacy and Data Protection Team. She is an associate in our Brussels office.T: +32 2 773 23 77 E: email@example.com