The Brussels Labour Court of Appeals gave judgment on 7 February 2013 on the privacy of e-mails in the professional inbox of an employee (the “Judgment”).
It forms a reminder for businesses of the importance of a proper e-mail and internet policy.
In the case at hand, the e-mails of an employee had been read by an assistant without his permission. The secretary came across specific facts by reading personal e-mails, including e-mails to close relatives. The secretary informed the employer who sought to dismiss the employee on the basis of these facts.
The Brussels Labour Court of Appeals was of the opinion that the examination of the e-mails without the employee’s consent, without informing the employee with regard to the purpose of the review of his e-mails and without informing the employee of any rules authorising the company to carry out such an examination of his e-mails, violated the privacy of the employee.
In particular, the Labour Court of Appeals was of the opinion that the company had violated:
- Article 8 of the ECHR and Article 22 of the Constitution (right to privacy);
- Article 124 of the Law on Electronic Communications of 13 June 2005 which prohibits persons from gaining knowledge about the content of e-mails;
- CBA No. 81 which outlines the rules and conditions which an employer must respect in order to monitor his employees’ e-mails legitimately;
- Article 314bis of the Criminal Code (which penalises the disclosure of the content of a private communication which had been obtained illegally).
A failure to comply with the multiple regulations governing privacy and the use of internet and e-mail by employees can give rise to penalties for the employer. In addition, all evidence obtained in violation of these regulations is in principle inadmissible in court.
In the case at hand, the employer had failed to observe applicable rules and the evidence was thus considered inadmissible. However, this does not mean that an employer does not have the right to monitor the use of internet and e-mail by his employees. Still, this right is subject to a number of constraints. Amongst other obligations, the employer must make sure that:
- the possibility to monitor the internet and e-mail use is stipulated in a written document;
- the monitoring must pursue a “higher” purpose that must have been clearly spelled out;
- the monitoring should be proportionate to the intended purpose; and
- staff should be informed of the possible monitoring.
It follows that a clear internet and e-mail policy is of the utmost importance to give the employer the possibility to monitor the use of internet and e-mail of its employees.