Unnotified Monitoring of Employee’s Emails is a Breach of the European Convention on Human Rights

The European Court of Human Rights has held that the monitoring of an employee’s electronic communications is a violation of Article 8 of the European Convention on Human Rights. Article 8 enshrines the right to respect for private life and correspondence.

In the case of Bărbulescu v Romania (Application no. 6149/08), the Grand Chamber judgment delivered on 5 September 2017 found that the national courts had not adequately protected Mr Bărbulescu’s (“the Employee”) right to respect for his private life and correspondence and they had as a consequence failed to strike a fair balance between the interests at stake.

The case concerned the decision of a company to dismiss the Employee from his employment after monitoring and accessing his electronic communications. The Employee was employed in the role of sales engineer and at his employer’s request had set up a Yahoo Messenger account for the purpose of responding to clients’ queries.  The company circulated a notice to say that Ms X had been dismissed on disciplinary grounds as she had used the internet, telephone and photocopier for her own personal use. Ten days after this notice, it was put to the Employee by the company that it had been monitoring his Yahoo Messenger account and that there was evidence that he had used it for personal purposes and he was asked to provide an explanation.

The Employee replied confirming that he had only used the account for professional purposes. The company produced a copy of his messages which included messages relating to personal matters. The company also produced messages exchanged on his personal Yahoo Messenger account from the company’s computer. The company terminated the Employee’s employment for breach of the company’s internal regulations that prohibited the use of company resources for personal use.

The Employee unsuccessfully challenged his dismissal in the Romanian Courts on the basis that his communications in the workplace were covered by the notions of private life and correspondence and were therefore protected by Article 8. The Courts found that the employer had complied with the Labour Code in dismissing the employee and that the employer was entitled to set rules for the internet. The employee had been duly warned of the company’s policy in this regard.

The employee then lodged an application with the European Court of Human Rights relying on Article 8 of the European Convention on Human Rights and claiming that his dismissal arising from the monitoring of his electronic communications and accessing their contents was a breach of privacy and the domestic courts had failed to protect his right to respect for private life and correspondence. The Court found that there has been no breach of Article 8 on the basis that the monitoring of his communications had been reasonable in the context of disciplinary proceedings. The case was then referred to the Grand Chamber.

The Grand Chamber found that Article 8 was applicable in this case and that the employee’s communications in the workplace were covered by the concepts of “private life” and “correspondence”. An employer’s restrictive regulations (in this case relating to the use of the internet) could not reduce private social life in the workplace to zero and therefore the right to respect for private life and for privacy of correspondence continued to exist, even if these are restricted in so far as necessary. The Court found that the national courts had failed to strike a fair balance between the Employee’s right to respect for his private life and the employer’s right to take measures in order to ensure the smooth running of the company, on the basis that the national courts did not determine the following:

1. whether the employee had been notified in advance of the possibility that communications would be monitored;
2. whether he had been informed of the nature and extent of the monitoring or the degree of intrusion into the employee’s private life;
3. whether there were legitimate reasons to justify the monitoring;
4. whether the employer could have used less intrusive measures of monitoring other than accessing the employee’s communications content,
5. the seriousness of the consequences of the monitoring and subsequent disciplinary proceedings were not considered;
6. at what point the contents of the communications had been accessed by the employer and whether this had been done without the employee’s knowledge.

In conclusion, the European Court of Human Rights found that the national courts had not adequately protected the Employee’s right to respect for his private life and correspondence and they had consequently failed to strike a fair balance between the interests at stake in breach of Article 8 of the European Convention on Human Rights.

Therefore, it would appear that employers must inform employees in advance of the extent and nature of the monitoring of employees’ electronic communications and the possibility that the employer may access the contents of same.

For further information please contact Gavin Simons (Partner) or your usual AMOSS contact.