Employee privacy upheld as Human Rights Court reverses ruling on monitoring
An employee who was dismissed after his employer monitored his electronic comnmunications and their contents for private messages suffered a violation of his article 8 right to respect for his private life and correspondence, the European Court of Human Rights ruled today.
By 11 votes to six, the Grand Chamber overturned an earlier chamber decision and held that Bogdan Bărbulescu, who lives in Bucharest, Romania, had not had his rights adequately protected by the Romanian courts, which had failed to strike a fair balance between the interests at stake.
Mr Bărbulescu was dismissed in 2007 for breach of his employers' internal regulations that prohibited the use of company resources for personal purposes. At his employers' request he had created a Yahoo Messenger account to deal with clients' enquiries. A few weeks before his dismissal, 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, phone and photocopier.
Ten days later Mr Bărbulescu was summoned to give an explanation as his Yahoo Messenger communications had been monitored and there was evidence that he had used the internet for personal purposes. When he denied it he was presented with a transcript of 45 pages of his communications from the previous week, 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. He was then dismissed.
The national courts dismissed his complaint that his employers had acted in breach of his constitutional rights and the criminal code. On his application to the Human Rights Court, the chamber judges held by six votes to one that the domestic courts had struck a fair balance between Mr Bărbulescu’s right to respect for his private life and correspondence under article 8 and the interests of his employer, and that his employer’s monitoring of his communications had been reasonable in the context of disciplinary proceedings.
In its decision the court noted that while the monitoring complained of had been done by a private company, it had been accepted by the national courts and the complaint should be examined from the standpoint of the state’s positive obligations.
The national authorities had been required to carry out a balancing exercise between Mr Bărbulescu’s right to respect for his private life, on the one hand, and his employer’s right to take measures in order to ensure the smooth running of the company, on the other. The national courts had referred to the applicable legal principles, but had omitted to determine 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.
Following international and European standards, 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. 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.
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 they national courts carried out a sufficient assessment of whether there had been legitimate reasons to justify monitoring Mr Bărbulescu’s communications, or 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. Nor had they 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.
Finally, the 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. Having regard to those considerations, 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.
The minority judges considered that the national courts had carried out a careful balancing exercise, and their decision to give the employer's interests precedence was not capable in itself of raising an issue under the Convention.