Small Business

Court approves employers' right to read your instant messages and WhatsApp

The European Court of Human Rights this week held there was no violation of an employee's right to privacy after his employer read his instant messages.

Romanian engineer Bogdan Barbulescu was asked to create a Yahoo instant messenger account to answer clients' queries.

Is your boss reading your instant messages?
Is your boss reading your instant messages?  Photo: AP

He was then approached by his employer, who told him the company had been monitoring his chats over several days, citing the company policy that the service should have been used for work purposes only. 

Barbulescu was presented with a 45-page transcript of his messages, including those sent to his fiancee and was dismissed for using Yahoo Messenger during working hours in breach of internal regulations.

The court held the company's monitoring of Barbulescu's communications with his brother and fiancee was reasonable in the context of disciplinary proceedings and was not a breach of his human rights. 

The right to privacy is contextual

Australian legal experts say employees in Australia should be aware employers can also monitor their communications they make using messaging apps such as Yahoo Messenger, WhatsApp and Facebook Messenger.

Tim Wilson, Australia's Human Rights Commissioner, says the decision of the European court has no legal impact in Australia, but like most discussions around human rights, the right to privacy is contextual.

"If emails account or phones are established for work purposes, or are accessed through work systems, they can be supervised by employers," he says. "If communications are strictly personal then monitoring by employers would be a violation of an individual's right to privacy." 

A potential unfair dismissal claim

Ian Scott, principal lawyer at Job Watch, says Barbulescu was dismissed for not working when he was meant to be working.

In Australia, Scott says Barbulescu would have a potential claim for unfair dismissal but his employer had a valid reason for dismissing him if he was engaging in private activities on paid work time.

"It's at the discretion of the Fair Work Commission to allow [transcripts from instant messaging] in as evidence or not, even if that evidence was obtained unlawfully," he says.  

Scott says it was reasonable for Barbulescu's employer to look at his messages because it was connected to monitoring whether he was working or not.

You have to assume an employer is looking over your shoulder

Josh Bornstein

"The employer was not just arbitrarily looking through his private messages," he says. "Employees need to be aware just because they have work computers and devices, it is their employers device and any email or message they send on that device is the property of the employer." 

The technology is irrelevant

Josh Bornstein, partner at law firm Maurice Blackburn says the notion of employees having a strict divide between their private lives and work lives has "collapsed" in Australia.

Bornstein points to his client Scott McIntyre, the former SBS reporter who was sacked for tweeting his political views about Anzac Day.

"There have been a string of cases where employees have been sacked in their private life after hours, conduct where they say this impacts the organisations brand," he says.

Bornstein says it doesn't matter what form of technology an employee uses, whether it is via Yahoo Messenger, WhatsApp, email or telephone.

"The form of technology is not particularly relevant in my view," he says.  

"You have to assume an employer is  looking over your shoulder."

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