The European Court of Human Rights has ruled that employers have the right to monitor their employee’s private messages on social media.
The case concerns the use of social media by a Romanian Engineer, Mr Barbulescu. He was fired after his employer compiled a 45 page report on his communications with his fiancée and brother.
Mr Barbulescu claimed that his right to privacy had been violated but the court ruled that “it was not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”.
Although the court made it clear that the employee had breached company policy, it added that employers could not indulge in unregulated monitoring of worker’s messages. The court advised that employers should draw up policies that state what information will be collected and how it will be used.
The blurring of the line between work and social life presents the employer with some interesting challenges regarding the individual’s right to privacy in the workplace. Employees have a legitimate expectation of personal privacy which is not overridden by the fact that the phone, laptop, or tablet may be provided by the employer. However, this right may be balanced with the interests of the employer:
- To protect their business and reputation;
- To reduce the risk of theft or damage at the employer’s premises;
- To prevent abuse of social networking sites, e-mail or text;
- To prevent cases of cyber bullying in the workplace.
The Data Protection Acts 1988 and 2003 set out the rights and entitlements of citizens regarding data privacy, however, the issue of monitoring the use of electronic communications in the workplace is not specifically covered by the legislation.
The Data Protection Commissioner accepts that employers have a right to protect their legitimate interests. To achieve this aim the employer may monitor the use of the internet, e-mail and smart phones at work. In principle there is nothing stopping an employer specifying that the electronic communication systems are not for personal use, however in practice most employers allow a limited amount of personal use.
The Data Protection Commissioner offers the following advice to employers:
‘the legitimate interest of the employer’ – the employer is entitled to process personal data that is necessary for the normal development of the employment relationship and the operation of the business. However, these interests cannot not take precedence over the principles of data protection, including the requirement for transparency, fair and lawful processing of data.
‘Monitoring e-mail, internet usage, surveillance by camera’– staff must be informed of the existence of monitoring and surveillance devices and the purpose for which the data is collected. Personal data collected in the course of monitoring must be relevant; must not be excessive and should not be retained for any longer than necessary.
If CCTV cameras are in use and public access is allowed, a notice to that effect must be displayed. Only in exceptional circumstances, for example a criminal investigation, should covert surveillance be used and always in consultation with the Gardai.
Employees have the right to access their personal data under section 4 of the Data Protection Act.
Employers must provide workers with a readily accessible, clear and accurate statement of policy on the use of electronic communications, including the use of social media. This should describe the extent to which the employees can use e-mail and the internet or personal mobile devices such as smartphones for personal communications.
We can advise you on preparing your policy statement and ensure that you balance the often competing rights of employer and employee.
14th January 2016