The European Court of Human Rights (“ECHR”) recently issued a judgment on the hot topic of employee monitoring in the case of Barbulescu v Romania.  In this instance, the majority of judges (in a 6:1 judgment) held that an employee’s right to “private life” and “correspondence” had not been violated by the employer who had accessed the contents of the employee's work-related instant messaging account. 

The Underlying Dispute

Mr Barbulescu, a Romanian national, worked for a private company.  Upon his employer’s request, he set up a Yahoo Messenger account to deal with customer queries.  The company's internal rules strictly prohibited staff from using company computers for personal matters.  Mr Barbulescu had been notified that his communications would be monitored and was aware of the consequences of breaching company rules.

Mr Barbulescu's employer monitored his Yahoo Messenger account over an 8-day-period and discovered that he had used it to communicate with family members.  When confronted, Mr Barbulescu denied any wrongdoing.  He was subsequently shown a transcript containing sensitive personal communications with his brother and fiancé, and dismissed for breaching the company rules.

Mr Barbulescu claimed that his dismissal was void as his employer had violated his right to correspondence.  The domestic courts dismissed his complaint, concluding that the employer’s conduct had been reasonable and that the monitoring had been the only method of establishing whether or not there had been a disciplinary breach. 

Relying on Article 8 of the European Convention of Human Rights (Right to respect for private and family life, the home and correspondence) Mr Barbulescu challenged his dismissal before the ECHR, arguing that the decision to dismiss him had been based on a breach of his privacy.  He claimed that the interference with his right was not proportionate to the legitimate aim pursued by his employer and that the domestic courts had failed to protect his rights.

The ECHR Decision

The ECHR held that, while Mr Barbulescu's Article 8 rights had been “engaged”, they had not been breached.  The key question considered by the ECHR  was whether the Romanian authorities - in the context of their positive obligations under Article 8 - had struck a fair balance between Mr Barbulescu's right to respect for his private life and correspondence and his employer's interest. 

The ECHR concluded that there was nothing to indicate that the domestic authorities had failed to strike such a fair balance. According to the ECHR, it is not unreasonable for an employer to check that employees are undertaking their professional tasks during working hours.  Further, the employer had acted within its disciplinary powers since it had accessed the Yahoo Messenger account on the assumption that it contained professional messages. The monitoring itself had been proportionate and limited in scope - only Mr Barbulescu's Yahoo Messenger account had been monitored as opposed to all other data / communications, and only limited use had been made of the content of Mr Barbulescu's messages.  Finally, the employee had been given the opportunity to bring the case before the domestic courts which had duly examined his arguments.

Comment

This decision has attracted a lot of media attention but is of limited effect.  It does not give employers free rein to access an employee's personal electronic communications nor does it abolish the right to privacy in the workplace.  Unfortunately, the decision does also not set out clear guidance for employee monitoring activities.  European employers continue to be required to comply with applicable laws and regulations (such as surveillance and data protection laws) which limit an employer's ability to monitor employees' private communications.  Penalties for breach of those obligations are potentially severe.