The judgement Bărbulescu v. Romania (application no. 61496/08) handed down by the European Court of Human Rights (ECHR) on September 5, 2017 concerned the decision of a private company to dismiss an employee after monitoring his electronic communications and accessing their contents.
The Court concluded that the national courts had not adequately protected Mr Bărbulescu’s right to respect for his private life and correspondence, failing to strike a fair balance between the interests at stake.
In particular, the Court stated that an employer’s instructions could not reduce private social life in the workplace to zero and that the national courts had failed to determine whether:
Mr Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored;
the specific reasons justifying the introduction of the monitoring measures; whether the employer could have used measures entailing less intrusion into Mr Bărbulescu’s private life and correspondence;
the communications might have been accessed without his knowledge.
From 1 August 2004 until 6 August 2007 Mr Bărbulescu was employed by a private company as an engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for the purpose of responding to clients’ inquiries.
On 3 July 2007 the company circulated an information notice among its employees which stated that one employee had been dismissed on disciplinary grounds after she had privately used the internet, the telephone and the photocopier.
On 13 July 2007 Mr Bărbulescu was summoned by his employer to give an explanation. He was informed that his Yahoo Messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes.
Mr Bărbulescu replied in writing that he had only used the service for professional purposes. He was then presented with a transcript of 45 pages of his communications from 5 to 12 July 2007, consisting of messages he had exchanged with his brother and his fiancée relating to personal matters, some of the messages being of an intimate nature.
On 1 August 2007 the employer terminated Mr Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.
Decision of the Court
The Court confirmed that Article 8 was applicable in Mr Bărbulescu’s case, concluding that his communications in the workplace had been covered by the concepts of “private life” and “correspondence”.
It stated that an employer’s instructions could not reduce private social life in the workplace to zero. Therefore the right to respect for private life and for the privacy of correspondence continued to exist, even if these might be restricted in so far as necessary.
In order to assess the lawfulness of the monitoring the Court expects the following to be checked by the national court:
- Whether Mr Bărbulescu had been notified in advance of the possibility that his employer might introduce monitoring measures, and of the nature of such measures (1)
- Compliance of the monitoring with the right to respect for employee’s private life and with the applicable legal principles (i.e. necessity, purpose specification, transparency, legitimacy, proportionality and security) (2)
- Whether the disciplinary proceedings had been conducted in an adversarial manner and whether Mr Bărbulescu had been given the opportunity to put forward his arguments (3)
(1) The Court considered that to qualify as prior notice, the warning from an employer had to be given before the monitoring was initiated, especially where it entailed accessing the contents of employees’ communications.
The Court concluded that Mr Bărbulescu had not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages.
(2) As to the scope of the monitoring and the degree of intrusion into Mr Bărbulescu’s privacy, this question had not been examined by either of the national courts nor had the national courts carried out a sufficient assessment of whether there had been legitimate reasons to justify monitoring Mr Bărbulescu’s communications.
As to the proportionality, neither of the national courts had sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the contents of Mr Bărbulescu’s communications. Moreover, neither court had considered the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings, namely the fact that – being dismissed – he had received the most severe disciplinary sanction.
(3) Finally, the national courts had not established at what point during the disciplinary proceedings the employer had accessed the relevant content, in particular whether he had accessed the content at the time he summoned Mr Bărbulescu to give an explanation for his use of company resources.
The Court concluded that the national authorities had not adequately protected Mr Bărbulescu’s right to respect for his private life and correspondence and that they had consequently failed to strike a fair balance between the interests at stake. There had therefore been a violation of Article 8.