Courts have to balance the right of employees to privacy with the right of employers to ensure the smooth running of their company. In Bărbulescu v Romania, the Grand Chamber of the European Court of Human Rights held that employers must tell employees in advance that they intend to monitor their email communications to avoid violating their right to privacy.
Basic facts
Mr Bărbulescu, a Romanian national, worked as an engineer in charge of sales for a private company. At his employer’s request, he created a Yahoo Messenger account to respond to clients’ enquiries.
Company regulations explicitly banned employees from personal use of the internet and on 3 July 2007, Mr Bărbulescu’s employer circulated a notice informing staff that one employee had been dismissed after she had breached the ban. On 13 July the company informed Mr Bărbulescu that it had monitored his account over the previous week and found very personal e-mails he had exchanged with his brother and his fiancée. After initially denying the accusations the company then presented him with a 45-page transcript of the messages. After a disciplinary hearing, he was dismissed for breach of the company’s internal regulations.
Mr Bărbulescu complained that by accessing his emails, his employer had violated his right to correspondence under Article 8 (the right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights.
Decision of lower courts
The first-instance court dismissed his claim on the grounds that the employer had complied with the dismissal proceedings under the Labour Code and that Mr Bărbulescu had been aware of the company’s regulations concerning internet use.
The Court of Appeal dismissed his appeal, holding that the employer’s conduct had been reasonable, not least because the only way they could find out if Mr Bărbulescu had breached the rules on internet use was by monitoring his account.
Mr Bărbulescu appealed again on the basis that the state had failed to stop his employer from interfering with his “private sphere”; and that the proceedings before the domestic courts had been unfair. The European Court of Human Rights (LELR 459) rejected the claim on the ground that it was not unreasonable for an employer to verify whether their employees were doing what they were supposed to do during working hours. In any event, Mr Bărbulescu’s employer had only accessed the account to find information that related to his professional activities, which was in itself a legitimate exercise.
Decision of Grand Chamber
Overturning the Court’s decision, the Grand Chamber held that even if an employee’s use of the internet at work was restricted, that did not mean they had no privacy rights at all.
As it was the job of the courts to manage the competing interests of employer and employee, they had to balance Mr Bărbulescu’s right to respect for his private life with his employer’s right to ensure the smooth running of the company. Although the courts had considered whether the disciplinary proceedings had been carried out fairly, they did not take into account the employer’s failure to warn Mr Bărbulescu in advance that they were going to start monitoring the contents of his email communications. Nor had they given enough thought as to whether the employer could have used less intrusive methods.
The Grand Chamber therefore 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.