News

Monitoring E-mails and Internet Usage of the Employee

In respect of certain legal standards applicable in the Dutch Caribbean, the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, including article 8, which safeguards the right to respect for private life.

On September 5, 2017 the European Court of Human Rights ruled that employees have to be informed upfront of the possibility that their e-mail traffic and internet usage can be monitored. The case concerned a Romanian sales engineer whose employment agreement was terminated after his employer discovered through monitoring the he had been using Yahoo Messenger for private purposes during his working hours.

The internal regulation of the employer stipulated that any private use of computers was forbidden. Despite this provision, the employee used the computer for private use. Ultimately the employee was dismissed for having breached this clear internal regulation. The termination of the employment agreement was confirmed by the Romanian employment tribunal.

The employee challenged this decision, complaining that there had been a breach of his right to private life and correspondence under article 8 of the European Convention on Human Rights, which article reads as follow: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

The Court ruled that the national courts had violated the employee’s right to privacy given the fact that the national courts had failed to determine (i) whether the employee had received prior notice of the possibility that he might be monitored; (ii) whether the employee had been informed of the nature or extent of the monitoring; (iii) which were the specific reasons justifying the introduction for the monitoring measures; (iv) whether the employer could have used measures that would be less intrusion into the private life and correspondence of the employee; (v) whether the communications might have been accessed with the employee’s knowledge.

Based on the Court’s ruling, it is of importance for employers to ensure that a written company policy is in place in which the employer informs its employees that their e-mail accounts and internet use may be monitored and under which circumstances such monitoring may take place.