In the long-running case of Bărbulescu v Romania, the Grand Chamber of the European Court of Human Rights (“ECtHR”) has overturned the ECtHR’s earlier ruling in relation to an employee’s right to privacy with regards to the monitoring of his personal messages in the workplace. Contrary to the earlier ruling, the Grand Chamber held that there had been a violation of Mr Bărbulescu’s rights under Article 8 of the European Convention on Human Rights (“ECHR”) (the right to respect for private and family life, the home and correspondence).

Facts of the case

Mr Bărbulescu was employed by a private company and at his employer’s request, he created an instant messaging account for the purpose of responding to customers’ enquiries. The employer’s internal policies provided that private use of the company’s IT resources was prohibited. The company’s policies did not, however, stipulate or contain any reference to the fact that employee use of the company’s IT resources would be monitored.

On 13 July 2007, Mr Bărbulescu was informed by his employer that his instant messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes. He was later presented with a transcript of 45 pages of his communications between 5 and 12 July 2007. The communications included messages he had exchanged with his family relating to personal matters. On 1 August 2007, Mr Bărbulescu’s employment contract was terminated for unauthorised personal use of company IT resources.

Mr Bărbulescu brought a claim challenging his dismissal in the Romanian courts, but this was not successful. He then brought a claim in the ECtHR alleging that the Romanian courts had failed to protect his rights under Article 8 of the ECHR.

In its original ruling, the ECtHR held that, while Article 8 was applicable, the monitoring of Mr Bărbulescu’s communications was a proportionate interference with his Article 8 rights. Regard was had to the fact that personal internet usage had been strictly forbidden by the employer. The court also noted that it was not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours.

Mr Bărbulescu appealed the decision to the Grand Chamber of the ECtHR.

Decision of the Grand Chamber

With an eleven to six majority, it was held that Mr Bărbulescu’s Article 8 rights had been infringed and the courts had not struck a fair balance to protect Mr Bărbulescu’s Article 8 rights. The Grand Chamber set out various factors which should be taken into account in determining whether a fair balance has been struck, which included:

  • whether the employee has been notified that the employer might monitor their communications (the fact that Mr Bărbulescu had not been was a crucial factor in this case);
  • the extent of the monitoring and the degree of intrusion into the employee’s privacy – here a distinction was drawn between whether it was simply the flow of communications that was being monitored or their actual content;
  • whether the employer has provided legitimate reasons to justify the monitoring of the communications and/or the accessing of their actual content – weightier justification is required where actual content is being accessed; and
  • whether it would have been possible to establish a monitoring system based on less intrusive methods.

Taking all of the relevant factors into account, the Grand Chamber did not consider that Mr Bărbulescu’s Article 8 rights had been adequately protected.

Comment

This case has attracted significant attention, not least because the ECtHR’s original decision was incorrectly seen in some quarters as giving a green light to wide scale monitoring of employees’ personal emails in the workplace. While the decision of the Grand Chamber may have shifted the balance in the favour of employee privacy to a degree, the case should not be seen as a barrier to monitoring employee communications in any circumstances.

A certain degree of monitoring of an employee’s electronic communications where these take place during working hours and/or using an employer’s IT systems will still be reasonable in many circumstances where this is for legitimate business purposes and (crucially) the employee is notified of this in advance.

An employer will, however, need to exercise care about reviewing the actual content of employee communications unless there is a particular reason to do so. If the employer is concerned with the level of personal use then it may well be that the statistics with headings of emails and/or particular email addresses and telephone numbers contacted will be all that is needed to show the level was excessive. There would be no need to print off and review what is actually written in the personal emails or messages.

 


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Damian Ward

Solicitor

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Posted on 08/09/2017 in Legal Updates

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