We previously reported on the European Court of Human Rights decision in Barbulescu v Romania in January 2016. This case concerned an alleged breach of European Convention on Human Rights (Convention) privacy rights in connection with covert monitoring of a workrelated email account. The case has now been considered on appeal by the European Court of Human Rights (ECHR) Grand Chamber.
Mr Brbulescu worked as an engineer in charge of sales for a heating company in Romania. At his employer's request, he created a Yahoo Messenger account for responding to clients' enquiries. The employer monitored this account for a period of two weeks and then informed the employee of this monitoring. Mr Brbulescu had sent personal messages to his fiance and brother and referred to very personal issues, such as his sexual health. The employer dismissed Mr Brbulescu for the breach of company regulations which prohibited the personal use of work computers. He brought a claim challenging his dismissal. The Romanian court found the dismissal to be fair and determined that his employer was entitled to monitor the content of his emails as he had been given adequate notice of monitoring. Mr Brbulescu brought a claim against the Romanian government in the ECHR, arguing that it had failed to protect his privacy rights under Article 8 of the Convention.
The Lower Chamber of the ECHR ruled that the employee should have reasonably expected his internet use to be monitored and as such rejected Mr Brbulescu's claim.
However, the Grand Chamber of the ECHR has now overturned this decision, ruling that the employer acted in contravention of the Convention right in Article 8 to respect for the individual's private life. The Grand Chamber ruled that employee's private correspondence was not open to the employer merely because it had been sent from an employer's computer. The Grand Chamber identified that, whilst Mr Brbulescu was aware of the prohibition on the personal use of equipment, the nature and extent of monitoring had not been adequately explained to him and, in particular, the fact that email content would be monitored had not been explained. The employer's policy did not include specific warning that the content of emails would be monitored.
The Grand Chamber concluded that there needed to be an unequivocal advance notice of any monitoring, and that employers are required to explain such monitoring, which must be justifiable. The Grand Chamber added that monitoring the content of emails requires greater justification than simply monitoring to whom employees send emails. The Romanian court had failed adequately to consider whether there was any justification for the monitoring of emails, nor had the court considered whether there were less intrusive methods of monitoring emails.
Individuals can only bring claims under the Convention against public bodies, that is courts or tribunals and organisations carrying out a public function. However, it remains advisable for all employers to have clear policies on internet use, including clear reference to any potential monitoring, and for employees to be asked to sign the policy to indicate their consent. When considering monitoring of employees, employers should be aware of the Information Commissioner's Guidance in its Employer Practices Code which is available here as well as their obligations under the Data Protection Act 1998 and Regulation of Investigatory Powers Act 2000.