The case concerned Mr. Bărbulescu, a Romanian sales engineer whose employment agreement was terminated after his employer discovered through monitoring that he had been using Yahoo Messenger for personal purposes during working hours.

The employer had an internal regulation that stipulated that any personal use of (amongst others) computers was forbidden. Despite this rule, Mr. Bărbulescu used the computer system to communicate with his brother and fiancée. Mr. Bărbulescu was ultimately dismissed for having breached the internal regulation. The termination of the employment agreement was confirmed by the Romanian employment tribunal.

In challenging the decision to be dismissed, Mr. Bărbulescu complained that there had been a breach of his right to private life and correspondence under article 8 of the European Convention on Human Rights.

The ECHR ruled that the national courts had failed to strike a fair balance between Mr. Bărbulescu’s right to respect for his private life and correspondence, on the one hand and his employers right to take measures in order to ensure the smooth running of the company, on the other.

The ECHR considered that the national courts had violated Mr. Bărbulescu’s right to privacy, given the fact that the national courts had failed to determine:

  • whether Mr. Bărbulescu had received prior notice from his employer of the possibility that he might be monitored;
  • whether he had been informed of the nature or extent of the monitoring;
  • which were the specific reasons justifying the introduction of the monitoring measures;
  • whether the employer could have used less intrusive measures; and
  • whether the communications might have been accessed without Mr. Bărbulescu’s knowledge.

In light of this case, it is of importance for employers to ensure that a policy is in place in which the employer informs its employees that their email accounts and internet use may be monitored and under which circumstances such monitoring may occur.