GUEST BLOG: Don’t shoot the Messenger

By Noel Doherty, legal expert in employment, IT and data protection law, and partner with FitzGerald Solicitors

An employer is now within its rights to read the private emails of a worker.

In a case before the European Court of Human Rights (ECHR) in Strasbourg, judges ruled that a company may read an employee’s messages transmitted on Yahoo Messenger while that person was at work.

The ruling said the man, an engineer in Romania, had breached company policy and his employer had a right to monitor his emails.

Bogdan Mihai Barbulescu (35) was employed by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.

The company informed him in July 2007 that records showed he had used the internet for the personal purposes, contrary to its rules. He insisted that he had only used the messaging app for work purposes, but was then presented with a 45-page transcript of his communications with his brother and his fiancee. The employee was dismissed due to breach of the IT policy.

Barbulescu complained that his human rights had been breached because his employer had accessed his private messages.

The ECHR decided the employer had acted within its powers and the employee’s human rights had not been breached, as he had been warned in advance that all communications would be monitored and that he was aware personal use of work’s IT equipment was banned.

This case serves as a helpful reminder of how employers can and should lawfully monitor employees communications.

It is imperative for employers to find a balance between their business interests and the legitimate expectation of personal privacy expected by employees.

The overall purpose of setting out IT policies is that employers can:

• Protect their business reputation
• Avoid liability for defamatory statements made by employees
• Avoid the use of company email accounts/websites for criminal purposes
• Reduce the risk of theft of business data or confidential information
• Prevent abuse of social networking sites, emails or texts emanating from business address
• Prevent cases of cyber bullying and sexually explicit activity in the workplace

It is imperative for employers to find a balance between their business interests and the legitimate expectation of personal privacy expected by employees

Social media like Facebook and Twitter have a huge influence in our lives today. It is no surprise that the line between work life and social life has become so blurred.

The prevalence of social media both in business and in the personal lives of workers presents an employer with some interesting challenges regarding the individual’s right to privacy in the workplace.

This case also underlines the necessity of having a robust IT policy setting out the employer’s stance on use and misuse of their IT equipment and their business identity.

Policies on the use of electronic communications and social media must be coherent and accurate and must be clearly communicated to employees and made readily available. They should describe the extent to which the employees may or may not use e-mail and the internet or personal mobile devices for personal communications.

Overwhelming? Inquire about preparing your policy statement today to ensure that you balance the often competing rights of employer and employee correctly.