The Right to Privacy v Monitoring Workers’ Emails

In the 2016 case of Bărbulescu v Romania, Mr Bărbulescu was dismissed for personal internet use at work, contrary to his employer’s internal policy, which strictly prohibited all personal use. The European Court of Human Rights (‘ECtHR’) held that his employer acted lawfully when it monitored Mr Bărbulescu’s Yahoo messenger account and such interference with Mr Bărbulescu’s Article 8 rights (right to private under Article 8 of the European Convention of Human Rights) was proportionate. Part of its rationale was that it was not the content of the messages that had been important before the domestic courts, but their existence.

The Grand Chamber of the ECtHR has now overturned this decision holding that Mr Bărbulescu’s Article 8 rights had been infringed as a result of his employer’s actions. The Grand Chamber set out the various factors to be considered when assessing the monitoring of workplace communications; this includes providing clear advance notification about the potential monitoring. In this case Mr Bărbulescu had not been informed of the nature and extent of the monitoring, or of the possibility that his employer may access the actual content of his messages.

Accordingly, the Romanian court’s decision was wrong due to a failure to strike a fair balance between the employer’s and the employee’s interests. There was inadequate protection for Mr Bărbulescu’s right to respect for his private life and correspondence.