European Union: European Court Provides Further Clarity On Employee Monitoring

The September 5, 2017, decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Bărbulescu v Romania (Bărbulescu) has interrupted a recent trend toward limiting privacy in the European workplace. The Bărbulescu decision held that a Romanian employee's legally protected right to privacy was violated when his employer monitored personal messages he sent from a company account.

This case stemmed from a Romanian company's dismissal of Mr. Bărbulescu, a sales engineer, for using his company Yahoo Messenger account (the Account) for personal purposes. The engineer set up the Account at his company's request to respond to customer inquiries and allegedly signed a company notice acknowledging that he was to use it only for work-related communications, but actually used it, in part, for personal communications with his fiancée and brother. The company later informed Mr. Bărbulescu that his communications were being monitored, and it believed that he was using the Account in part for personal purposes. The engineer responded to his employer in writing, stating he used the Account only for work-related purposes. Following this written representation, the company presented Mr. Bărbulescu with a 45-page transcript of his personal conversations and terminated him for breaching company policies.

Mr. Bărbulescu challenged his termination in Bucharest County Court (County Court), arguing that the company violated his right to private life and correspondence, which are protected by Article 8 of the European Convention on Human Rights (the Convention), by monitoring communications on the Account. The County Court rejected his claim on the grounds that under Article 40(d) of the Romanian Labour Code, which allows supervision of how employees perform their professional tasks, his company had a right to monitor his computer use in the workplace. Mr. Bărbulescu appealed this decision to the Bucharest Court of Appeal, which confirmed the County Court's ruling that an employer is entitled to monitor internet use in the workplace and discipline an employee who violates the employer's rules on personal internet usage.

Mr. Bărbulescu again appealed the decision, this time by lodging an application against Romania with the ECHR. The ECHR has jurisdiction to interpret the Convention and its protocols and heard Mr. Bărbulescu's case because it concerns the right to private life and correspondence under Article 8 of the Convention.

On January 12, 2016, a seven-judge Chamber of the ECHR held that the employer's surveillance did not violate Mr. Bărbulescu's right to a private life under Article 8, finding that the County Court had struck a fair balance between his Article 8 rights and the business interests of his employer. The ECHR noted that it was not unreasonable for an employer to seek to confirm that employees were completing professional tasks during work hours and that the employer had accessed the Account to confirm that Mr. Bărbulescu was abiding by company policy and using it for client-related communications only. The case was accepted by the Grand Chamber of the ECHR for reconsideration in June 2016, and oral arguments were heard on Nov. 30, 2016.

The Grand Chamber issued its final decision on Sept 5, 2017, voting 11-6 that the employer's actions had violated Article 8 of the Convention. In a press release about the ruling, the ECHR stated that, in particular, the Romanian courts failed to determine: (1) "whether Mr. Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored," (2) "the specific reasons justifying the introduction of the monitoring measures," (3) "whether the employer could have used measures entailing less intrusion into Mr. Bărbulescu's private life and correspondence," and (4) "whether the communications might have been accessed without his knowledge."

Bărbulescu is the ECHR's first case concerning the monitoring of an employee's electronic communications by a private employer. The case further develops previous rulings on similar issues. In its decision, the ECHR considered and distinguished – but did not overrule – Halford v UK and Copland v UK on various case-specific facts. In those cases, both involving public rather than private employers, some level of personal use was tolerated, meaning that the applicants had a certain level of privacy rights under Article 8 of the Convention. Further, the applicants were being monitored in those cases without their knowledge. Although there was some dispute regarding the employee's knowledge of monitoring in Bărbulescu, a document with the employee's signature seems to indicate that he was made aware of the company's internet use policy. The ECHR, in its Bărbulescu press release, instructs member states to ensure that "when an employer takes measures to monitor employees' communications, these measures are accompanied by adequate and sufficient safeguards against abuse" by giving particular consideration to the following:

• Has the employee received clear, advance notice that communications might be monitored?
• What is the extent of the employer's monitoring and the degree of intrusion into the employee's privacy?
• Does the employer have a legitimate reason both for monitoring the communications and for accessing their content?
• Is there a less intrusive means of monitoring the employee's communications?
• Were the results of the monitoring, and the consequences of the monitoring for the employee concerned, in line with the stated goal of the monitoring?
• Does the employee have adequate privacy safeguards?

The Bărbulescu decision has not ended discussion of an employee's Article 8 rights: An application is currently pending with the ECHR on this subject in Libert v. France. The case concerns an alleged violation of an employee's privacy rights by his government employer, the French national rail company (SNCF). The SNCF opened personal data files on the employee's work computer and that employee was then terminated based on the files' content. The case may soon provide the ECHR with another opportunity to refine its interpretation of Article 8 of the Convention.

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