By Emil Weber

The case of a Romanian who was sacked from his office job in Bucharest has created stronger privacy protection standards, thanks to an important ruling at the European Court of Human Rights (ECtHR).

The ECHR’s Grand Chamber supported the appeal of Mr. Bogdan Mihai Bărbulescu, that his right of respect for private, family life and correspondence in the context of his work was violated by his former employer, who accessed chat messages he had written whilst at work.

Mr. Bărbulescu worked for nearly three years in a private company (2004-2007). As part of his sales duties, he had created a Yahoo Messenger account at his employer’s request. In July 2007 the employer had written to him to ask why he used the premises for personal purposes. When Mr. Bărbulescu denied the claim, the employer provided a copy of the personal conversations that he had exchanged with his fiancée using his personal Yahoo Messenger account. The following month he dismissed him.

This is an important case for media freedom because it establishes a privacy test in electronic communication.

Mr. Bărbulescu’s company had regulations in place warning against causing a disturbance and using the premises for personal needs. However, the regulations did not contain any reference to the possibility for the employer to monitor employees’ communications.

But Mr. Bărbulescu complained at the court for violation of his right to a personal life, involving information on family and health circumstances. For nearly a decade since then he has appealed against all national court decisions and a 2016 ruling of the Fourth Chamber of the ECtHR.

Violation of Article 8 of the European Convention on Human Rights

The Grand Chamber, by eleven votes to six, ruled that there was a violation of Article 8 of the European Convention on Human Rights. The employer had no clear monitoring regulations in place.

“The Court observes that… he (the employee) did not appear to have been informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual content of his messages”, reads the judgement.

Further, the Grand Chamber maintained that the domestic courts had not conducted proper assessment of “whether there were legitimate reasons to justify” such a monitoring of the employee by the employer and whether “the aim could have been achieved by less intrusive means”.

Six dissenting judges stated that “the national authorities carried out a careful balancing exercise between the interests at stake, taking into account both the applicant’s right to respect for his private life and the employer’s right to engage in monitoring, including the corresponding disciplinary powers, in order to ensure the smooth running of the company”.

Mr. Bărbulescu will receive EUR 1365 in respect of costs, but he was not successful in his claim for just satisfaction.

Partially dissenting judge Işıl Karakaş did not share the majority’s opinion that the finding of a violation constitutes sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

“It provides​ for​ more ​employer respect of the right to privacy”

The European Centre for Press and Media Freedom (ECPMF) welcomes the strengthened legal standards on privacy protection at work ensuing from the judgement.

Ms. Gill Philips, director of Editorial Legal Services and the Guardian News & Media and member of the ECPMF Legal Affairs Committee says that the Grand Chamber judgement contains important guidance on the right of employers to monitor employees’ communications in the workplace.​ “It provides​ for​ more ​employer respect of the right to privacy ​​by requiring companies ​to ​properly inform workers of their policies”.

Ms. Philips said the ruling clarifies the parameters for ​employers’ who monitor employees​’​​ private communications. “It​ is not going to be sufficient for employers to ​try to rely on a general policy permitting monitoring​”. Philips added that the Chamber had picked on a previous dissenting judgement from Judge Albuquerque at the Fourth Section ruling. “According to Albuquerque, employees must be (a) made aware of the internet usage policy, (b) notified personally, and (c) consent explicitly.  The Grand Chamber judgment endorses much (but not all) of what he had to say”, Ms.Philips said.

“However, ​this is a cautionary reminder that ​the Grand Chamber judgement does not create ​an absolute right to privacy ​for employees,​ nor does it create a complete ban on employer monitoring​ of​ employees’ ​workplace ​communications”, Ms.Philips warns. “​There will always be a balancing act to be taken ​between the right​s of employee​s​ to respect for ​their private life and the legitimate interests of ​an employer in the context of​,​​ for example, disciplinary breach​es.​ If workplace monitoring ​is legitimate and proportional it can ​still ​be lawful”.

The Grand Chamber judgement is available here