The ruling issued by the European Court of Human Rights on 12 January 2016 (Barbulescu versus Romania) puts an end to the lawsuit brought against an employee’s dismissal because he had used (for his personal correspondence) a Yahoo Messenger account that his employer had instructed him to open to reply to customer requests. As grounds for its case, the company alleged that the employee had breached the company’s in-house rules that forbid employees from using the technological resources that the company makes available to them, for personal use or purposes.

The employee denied that he had used the account for personal purposes, then the company published a transcript of the personal messages that the employee had exchanged with his brother and his girlfriend, including those that he had sent through a personal Yahoo Messenger account. The employee sued the company and filed a claim to have the dismissal declared null and void because it violated the Romanian Constitution and Criminal Code, on the grounds that the company had violated his right to private correspondence.

The claim was dismissed by the court of first instance because it deemed that the employer had acted legally, given that the employee had been informed that he was forbidden from using the professional email for personal purposes. Said preliminary ruling was appealed by the employee who alleged that Article 8 of the European Convention on Human Rights had been violated. The court of appeals dismissed his appeal on the grounds (and in line with the first instance court) that the employer’s conduct was reasonable and that the monitoring (control, surveillance, espionage…) of the employee’s e-mail was the only way to find out if the employee had breached his contractual obligations.

In its ruling of 12 January 2016, the European Court of Human Rights addressed the question of employees’ privacy in relation to technological tools (as it did in the cases of Halford and Copland). What had to be decided was whether the employer’s conduct was reasonable and proportional to the circumstances, in other words, the court had to decide if the employee could have reasonable expectations that his conversations were not going to be controlled or monitored. The European Court of Human Rights considers that a company’s management powers entitle it to monitor employee activities to ensure the employees comply with their obligations; therefore, the company’s conduct was justifiable when it accessed the employee’s professional email account with the conviction that it would only contain professional information. Therefore, the national courts ruled correctly when they assessed the interests that were in play: the employee’s (with regard to the protection of his correspondence) and the employer’s (with regard to its control of employee activity).

In light of the media frenzy caused by this ruling of the European Court of Human Rights, we consider that it is necessary to focus on two questions when assessing its impact on the use of media by employees in the Spanish labour market.

  • On one hand, the European Court of Human Rights is not one of the EU courts and its rulings do no implement or construe European Community law. Its purpose is merely to ensure that Member States suitably protect their citizens with regard to the rights recognised under the European Convention on Human Rights;
  • On the other hand, although the ruling of the European Court of Human Rights validates the company’s monitoring the employee’s professional email (and even the monitoring of his personal accounts, which the company accessed to carry out its follow-up), there is already sufficient uniform and delimited judicial doctrine in Spain, which establishes the scope of employees’ fundament rights, the possibility that a company could limit such rights (if it is done in a reasonable and proportionate manner), and the fact that the employee must be duly informed of any rules in this regard, be they the rules established in collective bargaining agreements or those established internally by the relevant company.