The Prime Minister, David Cameron, is reportedly planning to abolish the Human Rights Act 1998 as soon as the dust has settled after the forthcoming referendum on the United Kingdom’s membership of the European Union.
Mr Cameron and his supporters aver that the rights of UK citizens will be better protected under a British Bill of Rights and point to the Magna Carta and subsequent law as evidence that Britain has for centuries safeguarded such liberties without recourse to supranational judicial bodies.
But – for now – the Act remains good law, and the European Court of Human Rights (ECHR) remains the ultimate arbiter of rights in England and Wales.
And the ECHR has recently reached a decision that may cause civil libertarians to raise their eyebrows.
In Barbulescu v Romania, the Court dismissed a Romanian citizen’s appeal against his employer’s decision to termination his contract of employment after the employee sent personal messages to his fiancée and brother from his professional Yahoo! Messenger account.
Mr Barbulescu sought to rely upon Article 8 of the European Convention on Human Rights – to which the Human Rights Act gives effect and on which the Court rules – which provides for the right to “private and family life, home and correspondence”.
The employee claimed the Romanian courts had failed to protect his Article 8 right. However, the ECHR determined that no such violation had occurred on the grounds that the employer’s monitoring of the messenger account had been legitimate and proportionate.
So what is the effect of Barbulescu? Does it mark the dawning of a new era for Big Brother?
Has it given employers carte blanche to track their employee’s every movement?
Every telephone call, every email, every instant message? Are we on the cusp of a dystopian, Orwellian, brave new world?
Well, in short: no. Or, rather, not necessarily, and at any rate not as a result of this decision. Importantly, no violation had occurred only because the employer’s monitoring had been legitimate and proportionate. Mr Barbulescu’s employer had requested he set up a Yahoo! Messenger account purely to respond to the enquiries of clients. The employers had informed Mr Barbulescu that the communications through this account would be monitored.
Mr Barbulescu had used the internet for personal purposes, contrary to the employer’s express regulations, which prohibited all personal use of company facilities, including computers. The employer had also accessed the account in the belief that it had contained professional messages – not to spy on Mr Barbulescu’s private affairs. So, in summary, employees do have a presumption of privacy when corresponding from work, unless their employers have told them they will be monitoring communications.
Employers are entitled to have their own internet communications policies, and employees should comply with such policies. On the other hand, sometimes employers do overstep the mark, and their surveillance does cross the line into unlawful, Nineteen Eighty-Four-esque territory.
If your business is having difficulties with an employee disregarding your internet communications policy and you want to discuss your legal options in respect of investigatory or disciplinary action, give Will De Fazio-Saunders a call on 01483 540 554 for a free no-obligation chat, or email .
If you have concerns relating to privacy at work or any other workplace issue, call or email Will today.
