On 5 September 2017, the Grand Chamber of the European Court of Human Rights (the “ECHR”) overturned the previous decision of the ECHR (sitting as a Chamber) and ruled that the Romanian courts had failed to strike a fair balance between the interest of an employer to monitor its employees’ electronic communications to ensure the smooth operation of the company and the employee’s right to respect for his private life and correspondence under Article 8 of the European Convention on Human Rights. However, in a question and answer section on its website the EHCR made it clear that the ruling does not mean that employers cannot monitor employee’s communications at work. Employers may still monitor their employee’s communications as long as such a measure is accompanied by “adequate and sufficient safeguards against abuse.”

The case was originally brought by Bogdan Mihai Bărbulescu, who argued his employer had breached his right to privacy by monitoring his electronic communications. The information obtained through the monitoring was used by his employers to take disciplinary actions against him which led to his dismissal as it was established by the monitoring that Mr. Bărbulescu was using the company’s internet for personal purposes in breach of the company’s rules against the use of company resources for personal purposes. Romanian courts ruled against Mr. Bărbulescu, who then brought the case to the ECHR.

In January 2016, the Chamber of the ECHR ruled, that Mr. Bărbulescu’s employer had not violated Article 8 of the European Convention on Human Rights on the grounds that the monitoring of Mr. Bărbulescu’s private messages was carried out in order to enforce its absolute ban on private use of work equipment and that Mr. Bărbulescu had actually breached his employment contract. Other factors considered by the Chamber were that: use of the transcript of the communications was limited; other documents stored on the computer were not checked; and there was no convincing reason for using work equipment for private purposes.

In overturning its original decision, the Court found that Mr. Bărbulescu’s privacy had not been “adequately protected” and that the Chamber had failed to establish justification of the employer’s monitoring of Mr. Bărbulescu’s private communications. The Court also considered whether Mr. Bărbulescu had been warned in advance that his communications would be monitored. In its decision, the Court stated that “an employer’s instructions could not reduce private social life in the workplace to zero.”

The ECHR’s decision makes it clear that when an employer takes measures to monitor employee’s communications, they should be accompanied by adequate protection in order to ensure such measures are not abused and that when assessing the legality of such measures, the national authorities should consider the following:

  • whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications. The notification should be clear about the nature of the monitoring and provided in advance;
  • the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. Employers should explain in the notice if the content of the communications is being monitored or only the flow of communications;
  • whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content;
  • whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications;
  • the consequences of the monitoring for the employee concerned and the use made by the employer of the results of the monitoring operation; and
  • whether the employee has been provided with adequate safeguards, especially when the employer’s monitoring operations are of an intrusive nature.

This judgment seeks to address some of the questions related to the scope of the right to privacy in the workplace. Privacy International Head of Policy and Advocacy Tomaso Falchetta, in his comments about the judgment, said that the Grand Chamber’s judgment “confirms that individuals have a right to privacy in the workplace” and praised it for offering “important protections to employee’s right to privacy.” The Grand Chamber is the ultimate court of the ECHR which hears referrals from individuals, organisations and governments from the 47 member states of the Council of Europe. All 28 EU Member States are members of the Council of Europe along with a number of non-EU states such as Russia.

In light of this important decision, companies should review their employee monitoring practices and ensure that the notice given to employees are sufficiently transparent.