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The European Court of Human Rights clarifies: private messages at work may not be so private after all

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What is the legal background?

A Romanian employee was dismissed by his employer for using his messenger account at work for private purposes and this in violation with the company policies.

The employee denied having used his messenger account for private purposes but the employer could present a 45 page transcript of personal messages which the employee had exchanged. 

In the case at hand, any personal use of an instant messenger or e-mail account was explicitly prohibited by the company’s policy.

The employee challenged his dismissal before the local Romanian courts claiming a breach of privacy. 

They nevertheless ruled his demands were ill-founded. 

Therefore, the employee addressed the matter to the European Court of Human Rights alleging that Romanian law would be in violation with article 8 of the European Convention on Human Rights, as it failed to preserve the right to respect for private and family life and correspondence.

What does the ruling state?

On January 12, 2016 the European Court of Human Rights ruled that Romanian law is not in violation with the employee’s right to respect for privacy and that thus the Romanian employer did not violate its employee’s privacy rights by monitoring the employee’s instant messages.

The ruling states in particular that:

•    it is not unreasonable for an employer to verify that the employees are completing their professional tasks during working hours
•    a monitoring of e-mail/internet use is permitted as long as it is proportionate and limited in scope

How does this affect your business?

When we apply the ruling in a Belgian context, we can conclude that Belgian employers can monitor their employees’ internet and e-mail use and can use employees’ personal information which was obtained during the monitoring as evidence, as long as a valid policy is in place and the principles of collective labor agreement n°81 are complied with.

One must nevertheless bear in mind that the current ruling does not give the Belgian employers a free pass to read the employees’ e-mail/internet traffic. 

K law is happy to assist you with the implementation of the necessary policy/documentation in order to monitor your employees’ e-mail and internet use. 

You can contact our expert lawyers Alexis Ceuterick or Sara Beutels for any questions you may have in this respect.

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