European Court of Human Rights (EC) has ruled recently [1] that employers must inform in advance their employees if their electronic communication means are monitored without unjustly infringing their privacy. This comes after EC issued the judgment in the case of Bărbulescu vs. Romania, a man fired after monitoring his business Yahoo Messenger account which was used for private communication with his brother and fiancée. The EC judges found that there was a violation of the Right to respect for private life and correspondence [2] because the employer didn’t inform him about possibility of monitoring his electronic communications.

Background

As a part of Mr. Bărbulescu’s job tasks was electronic communication with clients. Considering this, Mr. Bărbulescu created an Yahoo Messenger account for the business purpose. Later, he was informed that his account had been monitored by the employer and that there was evidence that he had used it also for personal purposes. On this fact he was summoned by his employer to give an explanation. Mr Bărbulescu denied the employer’s assertion, and replied in writing that he used the electronic communication account for professional purposes only. Later, he received 45 pages of his messages relating to personal life, some of them had an intimate nature. Following disciplinary proceedings, Mr Bărbulescu’s employment contract was terminated for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

Application to EC

After termination of the contract Mr. Bărbulescu appealed the employer’s decision in national court and lost the case. Relying on Article 8 – Right to respect for private and family life, the home and correspondence of the European Convention on Human Rights, he submitted a complained to the EC on the ground that the employer’s decision to terminate employment contract, after monitoring his electronic communications was based on a breach of his privacy and that the domestic courts failed to protect his right to respect for his private life and correspondence.

Judgment

The EC found that national courts failed to find if employee was notified in advance about the possibility of application of monitoring measures. The national Court had found that employers were summoned not to use the company resources for personal purposes, and qualified this fact as enough reason for Mr. Barbulescu dismissal, and considered this fact as the same as prior notice. Moreover, shortly before Mr Bărbulescu’s case, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes.

The EC stated that a prior notice had to be sent out before the monitoring was initiated, especially when this is connected to the access of the contents of employees’ communications. The EC found that employee had not been informed in advance about monitoring as well as the nature of monitoring, or the possibility that the employer might have access to the contents of his private communication.

In this regard EC said that “The domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse” [3]. Also, EC ruled that states must ensure that there are a number of safeguards in respect of the monitoring of communications, namely:

– Clear advance notification of the possibility of monitoring;

– The extent of the monitoring and the degree of intrusion, taking into account the difference between monitoring ‘flow’ of communications and their content;

– The justification for the monitoring;

– Whether less intrusive mechanisms for monitoring exist;

– The consequences for the employee;

– Whether adequate safeguards were in place. [4]

Conclusion

In the light of above arguments, the EC concluded that the national courts didn’t provide an efficient level of protection of Mr. Bărbulescu’s rights to respect for his private life and correspondence, as well as national courts had failed to establish a fair balance between the need to protect the employee’s privacy right and the employer’s right to supervise its business.

EC emphasized that, Romanian courts had failed to find whether Mr Bărbulescu had received prior notice from the employer that his communications might be monitored. On the ground of that, the EC appreciated the fact that he had not been informed as gross degree of intervention into his private life and correspondence. Moreover, the national courts had failed to determine, the justifying reason for use of the monitoring measures and the fact that employer could have used measures bringing less intervention into Mr Bărbulescu’s private life and correspondence.

Remark

The latest ruling in the case, Barbulescu v. Romania, applies to the 47 members of the Council of Europe, which includes nearly every country on the European Continent, including Turkey.

The European Court of Human Rights is a supra-national court established by the European Convention on Human Rights. The Convention was adopted in the context of the Council of Europe, and all of its 47 member-states which are contracting parties to the Convention. The EC hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights laid down by the Convention.

References:

[1] https://hudoc.echr.coe.int/eng#{“itemid”:[“001-177082”]}

[2] Article 8 of the European Convention on Human Rights

[3] Judgment para. 120 https://hudoc.echr.coe.int/eng#{“itemid”:[“001-177082”]}

[4] http://eulawanalysis.blogspot.md/2017/09/privacy-at-work-strasbourg-grand.html