Why it matters

In a favorable ruling for employers, the European Union's (EU) highest court concluded that an employee's right to privacy was not breached by an employer who monitored his private communications during working hours. Romanian engineer Bogdan Mihai Barbulescu was fired for using a Yahoo! Messenger account to communicate with his family members while on the job. Although the Yahoo! account was in his name, it had been set up for the purpose of dealing with clients and the company had a policy that expressly prohibited the use of computers, telephones, and other company resources for personal purposes. The European Court of Human Rights recognized that the EU's Convention on Human Rights respects the right to a private life, including private communications on personal matters. However, the employer's monitoring was limited in scope and proportionate, the court held, so no violation of the Convention occurred. "[I]t is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours," the 6-to-1 court wrote. While the decision does not provide carte blanche to employers to monitor their workers, it offers guidance to EU companies on the boundaries of permissible surveillance (with advance notice, on employer equipment, during working hours, and limited in scope, for example).

Detailed discussion

A resident of Bucharest, Bogdan Mihai Barbulescu was an engineer for an unnamed company. At his employer's request, he created a Yahoo! Messenger account for the purpose of responding to client inquiries. Pursuant to a company policy, the use of computers, telephones, and other company resources for personal purposes was prohibited and employees were notified that the employer could monitor their communications.

In July 2007 the employer informed Barbulescu that it had been monitoring his Messenger communications over the prior week and that the records showed he had used the Internet for personal purposes. The employee said he had used the account only for professional reasons, but when presented with a 45-page transcript of his communications—including correspondence with his fiancée and his brother about personal matters—he argued that the company had violated his right to privacy.

After the employer terminated Barbulescu, he challenged the decision. Both a trial court and an appellate panel in Romania dismissed his complaint and the case went to the European Court of Human Rights (ECHR), the highest court in the EU.

Barbulescu argued that Article 8 of the EU's Convention on Human Rights and Article 26 of the Romanian Constitution provided protections for his private life and correspondence and that the employer's monitoring of his personal messages violated those rights.

The employer countered that a Directive issued by the Data Protection Working Party provided that surveillance and the monitoring of electronic communications in the workplace are appropriate in proportion to a recognition of workers' privacy, taking into account factors such as necessity, fairness, and transparency. Barbulescu was on notice that his communications could be monitored and he violated company policy, the employer added.

Although the ECHR noted that prior precedent has adopted a "broad concept" of what constitutes a private life, the 6-to-1 majority found that the employer struck "a fair balance between the applicant's right to respect for his private life and correspondence and his employer's interests."

The employer accessed the Yahoo! Messenger account in the belief that it had contained professional messages, the court said. "[I]t is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours," the ECHR wrote. "In addition, the Court notes that it appears that the communications on his Yahoo! Messenger account were examined, but not the other data and documents that were stored on his computer. It therefore finds that the employer's monitoring was limited in scope and proportionate."

Barbulescu also "has not convincingly explained why he had used the Yahoo! Messenger account for personal purposes," the court added, affirming dismissal of the complaint.

A dissenting opinion expressed concern about whether Barbulescu was actually on notice about the possibility of the employer's surveillance. "Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace," the dissent noted, quoting a Working Party Directive.

To read the opinion in Barbulescu v. Romania, click here.