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Thursday, January 14, 2016

ECHR Backs Monitoring of Employee Messages

On January 12, the European Court of Human Rights, upholding the ruling of a Romanian court, found that an employer had the right to monitor the messages an employee sent via chat software and webmail accounts and to use information contained in those messages to terminate the employee. However, the ruling was far from a blanket endorsement of monitoring by employers, since it turned upon the somewhat unusual facts in the case, specifically that: (a) the employer had a published policy explicitly banning the sending of personal messages from work and informing employees that monitoring would occur; and (b) the employer owned primary chat account and the computing devices involved. Under these circumstances, the judges held that it was not "unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours". Only one of the seven judges on the ECHR panel disagreed with the decision, saying that the employer's blanket ban on personal use of the Internet at work was unacceptable. The ruling would likely have been different, at least in its elaboration and reasoning, if not in its outcome for the employee, had the case been heard by the Court of Justice of the European Union. The fact that the case originated in Romania, where reading messages of employees is legal, also was a significant factor.

The following day, bodies representing directors and employees, as well as privacy and human resources groups, warned employers not to take the ECHR ruling as a green light to institute Stasi-style surveillance at work. Further limiting the impact of the ruling is the fact that ECHR decisions are only legally binding on the country named in a case, with other member states free to adopt their own approach to the court's decisions.

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