Alan McCormack | Senior Associate

Bărbulescu v Romania: Are work related messages private?

The recent ruling by the European Court of Human Rights (ECHR) in the case of Bărbulescu v Romania involves whether employers monitoring private messages sent by an employee through a work related Yahoo account without his consent is an infringement of an employee’s right to privacy under Article 8 of the ECHR.

Mr Barbulescu’s employers asked him to create a Yahoo Messenger account for work related matters such as responding to clients enquiries. His employer made clear that these messages would be monitored and their company’s internal regulations stated that computers were not to be used for personal purposes.

In 2007 he was dismissed from his employment for breaching the company’s regulations as he had used the Internet for both personal purposes and work related purposes. Mr Barbulescu denied the allegations against him and confirmed in writing that he had only used the account for professional reasons. After doing so his employer approached him with various transcripts of the messages he has sent which involved messages to his wife and brother. His employer had accessed the Yahoo Messenger account in the belief that it had contained professional messages only and discovered that he had exchanged private messages. Some of the messages were of an intimate nature.

Mr Bărbulescu appealed, at first through domestic Romanian courts and then to Strasbourg who dismissed his claim. He claimed that the privacy of his emails should have been protected by article 8 of the European convention on human rights, which guarantees respect for private and family life and correspondence. He notified his employer and challenged the termination of his employment on the basis that they had violated his correspondence and therefore accountable under national laws.

The ECHR judges accepted that the case did raise the issue of his privacy but decided that the firm had acted reasonably in monitoring his emails in the context of disciplinary proceedings.

The Grand Chamber judgment held that there had been a violation of article 8 of the ECHR. It found that an employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary,” and that Strasbourg had failed to strike a fair balance between the interests at stake.

Factors the court should have considered consisted of whether Bărbulescu had received notice prior to the monitoring of the messages; whether he was informed his communications may be monitored and whether he had been informed of the extent of the monitoring. The Grand Chamber held the court had failed to consider all of these factors.
The ruling confirms that employees have to a right of privacy at work however in some work places messages and communication systems will be monitored and employers should indicate to the to their employees the extent of the monitoring and the methods they will use to conduct such monitoring. According to the ECHR employers should ensure their measures of monitoring employees ‘private messages’ are accompanied by adequate and sufficient safeguards against abuse.

Alan McCormack

Alan McCormack

Employment Law Team

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