Original decision caused right-wing press furore — and inaccurate reporting
The grand chamber of the European Court of Human Rights (ECtHR) has today ruled employers cannot monitor their employees’ electronic communications, at least not without giving adequate prior notice.
The court — ruling in a case brought by a Romanian appellant — decided that the national authorities had not adequately protected the citizen’s right to privacy. Ruling by 11 votes to six, the court said:
[T]he national courts had failed to determine whether [the appellant] had received prior notice from his employer of the possibility that his communications might be monitored; nor had they had regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or the degree of intrusion into his private life and correspondence.
This case, brought by Bogdan Mihai Bărbulescu, will no doubt pique the interest of privacy law enthusiasts.
A former salesperson, Bărbulescu was asked by his previous employers to set up and use a Yahoo Messenger account to correspond with work clients. He was later informed by his employer that his Yahoo communications had been monitored for a week and that records showed he’d been corresponding with his brother and his fiancée during working hours. The correspondence related to personal matters, such as health and sex. His employment contract was terminated.
An unimpressed Bărbulescu has challenged the employer’s actions all the way to Europe, relying on Article 8. In January 2016, the ECtHR held by six votes to one that there had been no violation. The court decided:
[It was] not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours.
In the days after this judgment, lawyers had their heads in their hands over the press’ attempt at case reporting. To give you a flavour, tabloid headlines included: “WARNING: Your boss can now legally read every WhatsApp message you send at work”.
These headlines were inaccurate because Bărbulescu’s Yahoo account, the subject of the decision, was for work. This means the case was no precedent for bosses being able to snoop on private messages. And, as any law student will know, the UK courts are bound only to “take into account” Strasbourg case law, meaning they can ignore it if they wish (think prisoner voting).
Though it’s early days for an assessment on the accuracy of today’s reporting, there have already been some facepalm moments.
Enter the Mail Online, which has this morning described the ECtHR as an “EU court”. City A.M. has also dropped the “EU’s top court” clanger. Senior law lecturer Paul Bernal’s tweet sums up our reaction perfectly:
Time for this yet again… pic.twitter.com/wC0bfRTY1g
— Paul Bernal (@PaulbernalUK) June 13, 2017
Read the judgment in full below:
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