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Email Surveillance In The Workplace: Don’t Believe The Hype

Email Surveillance In The Workplace: Don’t Believe The Hype

Mel Sangster

Many of us find the idea of our employer 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 ability to share a joke, article link or sweet nothing is almost perpetually at our fingertips.   Yet, as technology provides us with the opportunity to blur the boundary between our professional and private lives, many also worry about the right to privacy being eroded as a result.

The media’s somewhat anxious response to a recent decision by the European Court of Human Rights (ECHR) echoes this concern.  Indeed, the ruling, which held that a Romanian company had not breached the privacy of its employee by monitoring personal emails sent from his Yahoo Messenger account, might seem a perfect example of ever-encroaching surveillance.  However, a closer look at the judgment tells a rather different story.
The applicant was dismissed in 2007, after his employers discovered that he had been sending numerous personal messages through his Yahoo Messenger account.  These were 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 employer’s decision in the domestic courts and ultimately appealed to the ECHR, claiming 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 employer had accessed the applicant’s Yahoo Messenger account in the belief that it only contained client related communications.  The court highlighted that the employer’s disciplinary regulations expressly forbade the use of company resources for personal purposes.  They noted that it was only after the applicant had denied using the account for personal communications that the messages were read and it was the fact the messages were sent during working time, rather than their content, that was the decisive factor.  The court went on to say that the applicant had not convincingly explained why he had used the Yahoo account for personal purposes after his employer had expressly directed him not to do so.
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 employer’s actions were considered to be proportionate and limited in their scope.  
So, although the effect of the decision was to rule that the employer acted lawfully in this particular case, the judgment does not give employers free rein to monitor their employees’ private messages.  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 position remains that it is essential to have thorough and clear IT policies, which leave employees in no doubt as to what is permitted or prohibited.  If an employer intends to monitor communications, they should ensure employees are aware of this and be able to justify why this is required.  
Mel Sangster
Director

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

The applicant was dismissed in 2007, after his employers discovered that he had been sending numerous personal messages through his Yahoo Messenger account. These were 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 employer’s decision in the domestic courts and ultimately appealed to the ECHR, claiming 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 employer had accessed the applicant’s Yahoo Messenger account in the belief that it only contained client related communications.  The court highlighted that the employer’s disciplinary regulations expressly forbade the use of company resources for personal purposes. They noted that it was only after the applicant had denied using the account for personal communications that the messages were read and it was the fact the messages were sent during working time, rather than their content, that was the decisive factor.  The court went on to say that the applicant had not convincingly explained why he had used the Yahoo account for personal purposes after his employer had expressly directed him not to do so.

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 employer’s actions were considered to be proportionate and limited in their scope.

So, although the effect of the decision was to rule that the employer acted lawfully in this particular case, the judgment does not give employers free rein to monitor their employees’ private messages.  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 position remains that it is essential to have thorough and clear IT policies, which leave employees in no doubt as to what is permitted or prohibited.  If an employer intends to monitor communications, they should ensure employees are aware of this and be able to justify why this is required.  

Mel Sangster

Director

LChalmers