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06 Sep 2017

Newsflash | Employer’s rights to monitor electronic communications of employees examined by the European Court of Human Rights

The Grand Chamber of the European Court of Human Rights (“ECHR”) issued yesterday a highly anticipated ruling in the case Barbulescu / Romania (n°61496/08) regarding the monitoring of employees’ electronic communications within the workplace.

The case concerned Mr. Bogdan Barbulescu, a Romanian citizen, who was employed by a company as an engineer in charge of sales, from 2004 to 2007. Mr. Barbulescu had been using, within the framework of his job, a Yahoo Messenger email account to respond to clients’ queries.

Mr. Barbulescu was summoned in July 2007 by his employer to explain the use of Yahoo Messenger for personal purposes. Mr. Barbulescu denied and stated that he had been using the Yahoo Messenger only for professional purposes. The employer then presented to Mr. Barbulescu a transcript of his private conversation via Yahoo Messenger with his brother and fiancée, some of the messages being of an intimate nature. The employer dismissed Mr. Barbulescu on August 1st, 2007 based on a breach of the company’s internal regulations that formally prohibited the use of the company’s resources for private reasons.

Mr. Barbulescu had challenged his dismissal before the Romanian courts claiming that his employer's practices violated Romanian constitutional and criminal rules, and also his fundamental right to privacy under Article 8 of the European Convention on Human Rights. The national courts rejected the employee’s application and ruled that employers have the right to restrict the use of the internet so that it is used for professional purposes only and that Mr. Barbulescu had duly been informed of the internal rules set by the company for the use of the company’s resources.

Mr. Barbulescu brought the case before the ECHR on the grounds that Romania failed to protect his right to privacy from his employer and thus violated Article 8 of the ECHR. In January 12, 2016[1], the ECHR ruled that the employer was justified in reading the chat history in the context of enforcing discipline and stated that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”.

The Grand Chamber of the ECHR, which is the appeal division of the ECHR, overruled the former decision and found that Mr. Barbulescu’s right to privacy had been violated. Although it was questionable whether Mr. Barbulescu could have had a reasonable expectation of privacy at the workplace given the company’s restrictive regulations on internet use, of which he was duly informed, the rights for a private and social life of employees may not be reduced to zero at the workplace. The right to respect for private life and privacy of correspondence may be restricted by the employer, if necessary, but shall still exist.

National courts must find a balance between the competing interests at stake, namely, the employee’s right to privacy, on the one hand, and the employer’s right to take measures to ensure the smooth running of the company, on the other. Countries should always ensure that “the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse[2].

In particular, the Grand Chamber of the ECHR ruled that[3]:

  • Employees should be notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures. While in practice, employees may be notified in various ways depending on the particular factual circumstances of each case, the notification should normally be clear about the nature of the monitoring and must be given in advance;
  • A distinction should be made between monitoring the flow of communications and monitoring of their content. The employer shall provide legitimate reasons to justify monitoring the communications and accessing their actual content. Since monitoring of the content of communications is by nature a distinctly more invasive method, it requires more robust justification;
  • Employers shall ensure that they cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.

In the case at hand, Mr. Barbulescu had not been informed in advance of the scope and the nature of the monitoring and of the fact that the employer may have access to actual content of the messages. In addition, it had not been proven that there had been legitimate reasons to justify the monitoring of Mr. Barbulescu’s communications or that he exposed the company to any risk. Finally, Romanian courts did not sufficiently examine the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings.

In the light of the above considerations, the Grand Chamber of the ECHR concluded that Romanian authorities had not adequately protected Mr. Barbulescu’s rights to respect his private life and correspondence and ruled that there had consequently been a violation of Article 8 of the European Convention of Human Rights.

 

[1] ECHR, Barbulescu / Romania, n°61496
[2] Paragraph 120 of the ruling
[3] Paragraph 121 of the ruling