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European Court of Human Rights Rules That Employers Can Monitor Employee Private Communications

On January 12, 2016, the European Court of Human Rights (ECtHR) ruled that an employer who had monitored an employee’s private communications during working hours had not breached the employee’s right to privacy (under Article 8 of the European Convention on Human Rights).

This judgment will influence how other European national courts and regulators view similar cases involving employer monitoring of employee private communications. However, the full scope of the judgement remains somewhat unclear; in particular, it remains unclear whether the ECtHR would apply similar logic if the monitored communications had been carried out through a personal account, rather than a professional one.  Employers should also take note that the judgment emphasizes the need for employer monitoring policies to be reasonable and proportionate.  The judgment is available in full here.

Background

The case arose when Bogdan Mihai Bârbulescu, a Romanian engineer, appealed to the ECtHR (following actions in domestic courts) after he was fired for using his Yahoo Messenger account to communicate with his family during working hours.

Bârbulescu set up the Yahoo account at his employer’s request and for the express purpose of dealing with client enquiries.  In the ECtHR’s eyes, however, Bârbulescu’s employer’s conduct was restrained; it had only originally accessed the Yahoo account in the sincere belief that it would find only professional communications, not personal ones; its internal policy, which was notified to employees, expressly prohibited the use of computers, telephones and other company resources for personal purposes; and, once it began to investigate Bârbulescu, it took steps to limit its subsequent access to files maintained by him.  Also, when Bârbulescu’s breach was discovered, the employer notified Bârbulescu that his communications had been monitored and that it had determined internal policy had been breached because of his personal use of the account.

Judgment

In its ruling, the ECtHR found that Bârbulescu had a right to private life under Article 8 of the Convention, and that the right was engaged by the employer’s monitoring. It also found that the employer’s monitoring was limited in scope, and proportionate, and that therefore there was no violation of Bârbulescu’s Article 8 right. In reaching its conclusion, the ECtHR noted that:

  • Bârbulescu’s employer accessed the Yahoo Messenger account for legitimate purposes, because the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature;

  • the monitoring of Bârbulescu’s communications was proportionate, because it was the only possible way available to the employer of establishing whether Bârbulescu had committed a disciplinary breach; and

  • Bârbulescu had no convincing reason to explain why he had to use the Yahoo Messenger account for personal purposes.

In reaching its decision, the ECtHR stated that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”, and judged that this result struck a fair balance between Bârbulescu’s right to private life and correspondence under Article 8, and the legitimate interests of his employer.

© 2022 Covington & Burling LLPNational Law Review, Volume VI, Number 15
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About this Author

Ezra Steinhardt, Covington, data and cybersecurity lawyer
Associate

Ezra Steinhardt advises on European privacy, technology, and trade laws and policy.

Mr. Steinhardt provides clients, including major technology and life sciences companies, NGOs and trade consortia, with compliance advice, and strategic representation in internal and regulatory investigations and public affairs outreach.

44 20 7067 2381
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