On September 5, 2017, the Grand Chamber of the European Court of Human Rights (“Court”), one of Europe’s highest appellate courts, issued a landmark ruling limiting the monitoring of an employee’s electronic communications by private employers (including those with US based parent companies) in European nations.  The judgment of Bărbulescu v. Romania (“Case”) held that lower courts erred by not assessing whether an employee was given prior notice by an employer that the employee’s private electronic communications may be monitored, including notice of the nature and extent of any monitoring.  The Court clarified that prior notification requires notification of both (a) the extent and nature of monitoring before any monitoring begins, and (b) of the possibility that an employer may view the actual content of personal messages transmitted on a private employer’s electronic device.

In this case, Bogdan Mihai Bărbulescu (“Employee”) was employed by a private Romanian company (“Employer”) from August 1, 2004 to August 6, 2007, as a sales engineer.  Upon request by the Employer, the Employee created an account on Yahoo Messenger, an instant messaging platform.  The purpose of the account was to facilitate real-time communication between the Employee and the Employer’s customers.  Internal regulations of the Employer stated that “[a]ny disturbance of order and discipline on company premises shall be strictly forbidden, in particular: . . . personal use of computers, photocopiers, telephones, or telex or fax machines.”  The internal regulations did not state the Employer would monitor the Employee’s communications.

Between July 5, 2007 and July 13, 2007, the Employer monitored the Employee’s Yahoo Messenger communications.  The Employee was notified that his Yahoo Messenger communications were monitored and that there was substantial evidence that he had been using it for personal use, violating the internal regulations of the Employer.  After the Employee denied using the messenger platform for personal use, the Employer provided a forty-five page transcript containing the content of messages between the Employee, his brother, and his fiancé.  The messages contained personal and often intimate matters.  In August 2007, the Employee was terminated by Employer for violating the internal computer use policies.

The Employee sued in Romanian national courts, where the Employer received favorable rulings based upon the notions that the Employer complied with termination proceedings under local labor law, that companies are able to establish their own guidelines for internet use, and that the Employee had been notified of the Employer’s internal regulations.  Next, the Employee submitted an application to the European Court of Human Rights, which held that the Romanian courts correctly balanced his right to privacy against the interests of the Employer.  Last summer, the Employee appealed his case to the Court.

In its ruling, the Court noted that “proportionality and procedural guarantees against arbitrariness are essential,” as discretion in the monitoring of an employee’s private correspondence at work is not unlimited once prior notification is received.  Six relevant factors to consider were laid out in the judgment: “(i) whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementations of such measures; (ii) the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy; (iii) whether the employer has provided legitimate reasons to justify monitoring the communications and assessing their actual content; (iv) whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly assessing the content of the employee’s communications; (v) the consequences of the monitoring for the employee subjected to it; and (vi) whether the employee has been provided with adequate safeguards.”

With the facts at hand, the Court noted that the Employer’s mere notification to the Employee that another employee has been disciplined for using company electronic resources for personal use did not rise to the level of the required prior notification before monitoring can begin.  The Romanian courts failed to determine if the Employee had prior notice that his communications would be monitored, the nature and extent of any monitoring, or the degree of intrusion into personal communications.  Further, the Court stressed that the lower courts failed to analyze the case under the six previously-mentioned factors, a crucial tipping point in the balance of the interests in dispute.

The holding should not be construed to state that under no circumstances may an employer monitor employees’ private communications, but rather there are specific safeguards and limitations that must be in place to avoid arbitrariness or over-inclusiveness in any monitoring that may occur in a Europe-based office.  This Case likely will lead to other European countries changing national law to avoid violations of the judgment, impacting private companies with offices within each respective country.

Looking ahead, employee handbooks or human resources policies drafted in the United States for private companies with subsidiary or affiliate offices in Europe may require updates to parallel the new clarification carved out by the Court as the legal standards can deviate from the monitoring standards permitted in the United States.