In Barbulescu v Romania the European Court of Human Rights considered whether the monitoring by an employer of employees’ personal communications at work amounted to a breach of the right to respect for private life and correspondence.
Facts
Mr Barbulescu was an engineer who was provided with a Yahoo Messenger account by his employer to respond to enquiries from clients. In July 2007, Mr Barbulescu’s employer informed him that they had monitored his communication use over a week and believed he had used the account for personal purposes in strict contravention of the employer’s company policy which permitted no personal use whatsoever. Mr Barbulescu said that he had only used the account for professional purposes.
In response, the employer produced a 45-page text transcript of his communications over the relevant week. Some of the messages contained intimate personal information about his health and sex life. The transcript also contained the text of five short messages exchanged with his fiancee using his personal (non-work-related) Yahoo Messenger account. The transcript of Mr Barbulescu’s messages was also made available to his colleagues who discussed it publicly. The employer disciplined Mr Barbulescu and dismissed him for unauthorised personal use of the internet.
Romanian proceedings
Mr Barbulescu brought an action in the Romanian courts to challenge his dismissal but this was unsuccessful. The court held that Mr Barbulescu had been given adequate notice of both the rule against personal use of company property and of the fact the employer may monitor his communications. The court also held that as Mr Barbulescu had claimed that he had only used the account for work purposes, the employer had no alternative but to monitor his messages to verify this.
European Court proceedings
Mr Barbulescu brought a claim against the Romanian government in the European Court of Human Rights (ECtHR), arguing that it had failed to protect his rights to privacy and correspondence under Article 8. The ECtHR dismissed the case by a majority, holding that Mr Barbulescu’s Article 8 rights had been engaged, but that the interference had been proportionate.
The court commented that there was no straightforward answer as to whether Mr Barbulescu had a reasonable expectation of privacy in this case. The court held that it was not unreasonable for an employer to want to verify that employees are working during working hours, even where it is not alleged that the employee’s actions have caused any actual damage. Although the employer in this case had examined the messages, it had not looked at any other data or documents on the employee’s computer. The monitoring was therefore limited in scope and, in the court’s view, proportionate.
As such, there was nothing to suggest that the Romanian authorities had failed to strike a fair balance between the employer’s interests and respect for the employee’s private life.
Comment
This case has generated significant media commentary in the UK, some of it giving the misleading impression that the court has given employers a blanket right to snoop on the personal communications of employees. In reality this case is unusual on its facts, as most UK employers would allow or at least tolerate some personal internet and telephone use at work, and to that extent this situation is less likely to occur. Moreover, there is an increasing amount of unfair dismissal case law highlighting the need for employers to put in place clear communications policies and to avoid disproportionate responses to situations such as the one that arose in this case.
The message to take away from this case is that employers do have the right to monitor emails but only where employees have been expressly warned that this may happen and only where there is a clear justification for doing so.
