With the prevalence of technology in society, relevant questions arise with regards to employers' right to read and become acquainted with employees' private emails.
On 12 January 2016[i], the European Human Rights Court delivered its judgment on the question if a Romanian employer was entitled to become acquainted with an employee's private emails on a work-related Yahoo Messenger account.
In this particular case, the employee had, on request from the employer, created a Yahoo Messenger account for work-related use. The company had internal guidelines stating that work equipment including computers etc. was not to be used for private purposes. In conflict with the company's internal guidelines, the employee had exchanged private emails with his fiancée and his mother.
After litigation before the national courts, the employee brought the case before the European Human Rights Court. The court was requested to decide if the employer had violated article 8 of the Universal Declaration of Human Rights by becoming acquainted with the employee's private e-mails. Article 8 e.g. stipulates that: "Everyone has the right to respect for his private and family life, his home and his correspondence."
The European Human Rights Court found that the employer had not violated article 8. The European Human Rights Court based its decision on several things, e.g. that the employer had monitored the accounts based on the assumption that it was only used for work-related purposes and that the monitoring of the accounts was reasonable based on a balance of both parties' interests.
In 2015, the Danish Supreme Court[ii] decided in a similar case. In this actual case, the employer reviewed the employee's private emails because the employer suspected that the employee had, without authorisation, forwarded confidential information from the email account. In this case, the Supreme Court decided that the employer was entitled to review and read the employee's private emails. The decision was substantiated by the company's internal policy stating that emails belonged to the employer, and the fact that the employee had not marked any of the reviewed emails as private emails.
Bird & Bird's comments
It must be based on an actual assessment if an employer in a certain situation is entitled to review and read an employee's private emails. Based on the above judgments, it can be ascertained that companies' internal policies on emails are important for access to review and read an employee's private emails, both from an employment law angle and also an assessment pursuant to the European Convention on Human Rights.
Finally, it should be noted that the Danish act on processing of personal data states that an employer must inform the employees on monitoring of emails. When the new data protection directive becomes applicable, a violation of the act on processing of personal data may result in fines of up to DKK 20m or 4 % of the company group's global revenue.
[i] (application no. 61496/08)
[ii] Included in UfR 2015.1525H