14
ISSUES: Privacy
Chapter 1: What is privacy?
Can the boss now read your messages at
work?
Claim
A court decision gives employers
the right to check all the messages
an employee sends from company
computers.
Conclusion
The decision was that privacy rights
don’t rule out employers checking
whether staff are sending personal
messages on work computers, in
particular circumstances. It doesn’t
directly change UK law, which already
allows some monitoring.
On 12 January, the European Court
of Human Rights decided that the
employers of a Romanian man who
checked messages he’d sent at work
hadn’t violated his right to privacy.
It’s not obvious that this makes an
immediate difference to employees at
their desks in Blighty.
Sacked for sending personal
messages at work
In 2007, Bogdan Bărbulescu’s Yahoo
Messenger account was examined by
his bosses to check his claim that he
hadn’t used it for personal purposes –
which was against the company’s rules.
He was sacked, challenged this in the
courts of Romania, and lost. He then
took his argument to the human rights
court in Strasbourg.
Those judges concluded that “it is
not unreasonable for an employer to
want to verify that the employees are
completing their professional tasks
during working hours”.
They said that it wasn’t the content
of the messages that led to the
employee’s dismissal. It was the fact
that they weren’t about work that was
Mr Bărbulescu’s undoing.
Does the verdict change the
law in this country?
The BBC originally reported that
decisions of the human rights court
“binds all countries that have ratified
the European Convention on Human
Rights, which includes Britain”.
But the Convention says that countries
“undertake to abide by the final
judgment of the Court
in any case to
which they are parties
” (our emphasis).
The only country that was a “party”
to this case was Romania. It’s bound
to follow the court’s decision (which
in this case involves doing nothing, as
the human rights judges agreed with
the Romanian courts).
The UK’s Human Rights Act says that
judgments of the human rights court
must be taken into account by our
courts. This isn’t quite the same as them
being legally binding in this country.
Things would have been different if this
were a ruling from the European Union
Court of Justice, as EU law trumps UK
law if there is a conflict. The human
rights court isn’t an EU body. It’s part
of the Council of Europe, which has 47
members to the EU’s 28.
This particular case might be
unusual
British judges might still be influenced
by this decision. Experts disagree, as
they often do, about its importance.
Court decisions may be of immediate
importance or significance down the
line. They may simply be in line with
what judges have said before.
Sometimes a case sets a precedent
that would be followed if that exact
situation came up again, but won’t
necessarily be followed if the facts are
merely similar.
For example, the human rights court
said in Mr Bărbulescu’s case that “his
complaint before the Court is limited to
the monitoring of his communications
within the framework of disciplinary
proceedings”.
It also noted that “the employer’s
monitoring was limited in scope and
proportionate”.
There was no violation of privacy rights
in these circumstances. That doesn’t
mean that blanket surveillance when
there’s no particular reason to do so
would be acceptable.
The judges also stressed that personal
useof office computerswere specifically
forbidden by Mr Bărbulescu’s firm. This
made the case different from previous
ones where employees were successful
in their privacy complaint. In those
cases, the personal use of office facilities
was “allowed or, at least, tolerated”.
