Recent news headlines have warned employees that social media chat and email conversations at work are open to being read by the boss, following a recent ruling by the European Court of Human Rights.

But experts say that the headline writers have missed the point, as the ruling in Bărbelescu v Romania puts greater pressure on employers to justify any monitoring of private messages, rather than any relaxation. 

The ruling did allow that companies have a right to monitor internet usage by employees during working hours, but only under very clear circumstances. In this case, an employee had been fired for using an instant messaging service for personal use, in breach of internal policy.   Mr Bărbelescu had created a Yahoo Messenger account at his employer’s request so he could respond to enquiries from clients, but when the employer monitored the chats over a week-long period, personal messages were found and his employment was terminated.  

Following a number of court hearings in Romania, the case went to the European Court to decide whether the employer’s actions had breached Mr Bărbelescu’s right to respect for his private life and correspondence under Article 8(1) of the European Convention of Human Rights (Article 8).

The ECtHR ruled that Article 8 was engaged, so if the employer did look at the Yahoo Messenger chats, such action had to be proportionate to the situation.  They ruled that because of the particular circumstances in this case there was no violation of Article 8, as it was not unreasonable for an employer to verify that employees are completing their professional tasks during working hours.  The decision relied, importantly, on what Mr Bărbelescu had told his employer, which was that the account contained client-related communications only.

Where policies are strict in setting out no personal usage, this can be easier to implement than allowing for limited personal use, where the boundaries need greater definition.  One option is to encourage employees to use their own devices for private use, but that requires a clear BYOD - ‘bring your own device’ - policy alongside.  With BYOD, employees may also need reminding that unless they use their own data connection, any content that uses company wi-fi could be monitored, if that’s the policy.