No, Europe did not just rule that your boss can rifle through your emails, Facebook private messages, WhatsApp group chats, DMs on Twitter, matches on Tinder, or any of your personal communications.
The press has gone completely overboard with reports that European courts ruled employers now have a right to spy on the private communications of their workforce. The Independent claimed bosses can now monitor private messages on WhatsApp. The Daily Mail that Britons “have been warned not to use Facebook, Twitter or Google at work”, and Bloomberg that bosses “can snoop on e-mails to girlfriend, court rules”.
The ruling is, in fact, rather different.
The source of the claims – a labour dispute originating in the Romanian courts in 2007, which was then taken to the European Court of Human Rights in 2008.
It ruled that a Romanian man, Bogdan Mihai Barbulescu, was not unfairly dismissed by his employer after it came to light he had been using a company-provided instant messaging service to speak with his fiancee and brother while on the clock. According to the court, Barbulescu told his employer that he had solely been using the business Yahoo Messenger account to speak with clients in a professional capacity. Having examined the transcript, bosses unearthed messages to his brother and fiancee – in breach of the terms of his employment.
The full court document takes into account other instances where workers considered their employers to have impinged on their right to privacy – including the case of Copland vs The United Kingdom, which Thomson Reuters’ Practical Law service describes as a manual on how not to monitor your employees’ communications. Nowhere in the document is there a green light for bosses to snoop as much as they see fit.
As the court document itself (PDF) states, doing so would be in contravention to Article 8 of the European Convention on Human Rights – the right to respect for private and family life, home and correspondence, and that there shall be no interference from public authority with the exercise of this right.
Managing partner of international law firm Morrison Foerster and specialist in European and employment law Hanno Timner tells Computerworld UK: “The Daily Mail article: ‘Bosses were yesterday given the right to spy on staff emails’, that is just completely wrong. There has not been a change at all. It is always difficult to make headlines by saying nothing has changed. But nothing has changed. Really.”
Timner says that it is “clear and not really disputed by anyone that there is a right to privacy to some extent at the workplace”. But it is also clear that “employers must have the possibility to monitor professional performance of the employers. If anyone asked me what had been my advice – whether an employer could monitor professional messages, I would have said: ‘Yes, you can, as long as you first let people know you can only use a tool for professional purposes’.”
“It has to not be excessive, you can’t monitor everything. If as a company policy you read all communications, that would not be compliant with data protection. But if you do spot checks of professional communications that is perfectly alright.”
A certain amount of personal communication, even from work devices, is covered under Article 8. “Even if the employee has a company-sponsored smartphone with WhatsApp, and WhatsApp is just for personal use and the employer monitored it, that is a violation of data protection laws and probably of the Convention,” Timner says. The same goes for any boss using IT at their disposal to monitor completely private communications. “But if you have a tool that is just for professional purposes and monitor it as an employer not excessively, this is absolutely legal.”
That was part of what let the case down. The applicant had told the company that his use of the messenger service was entirely professional.
So snooping bosses and email voyeurs shouldn’t get too excited by the good, old-fashioned tabloid sensationalism: the law is not on their side. The courts will continue to judge anything of this nature on a case-by-case basis – and a single ruling relating to a labour dispute in 2007 will not change that.
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