In Barbulescu v Romania, a Romanian employee took his case all the way to the European Court of Human Rights. This judgement has been widely reported as giving employers carte blanche to monitor employees’ private communications. We look at the facts behind the headlines.
Mr Barbulescu was an engineer for a heating company. At his employer’s request, he set up a Yahoo Messenger account to deal specifically with client enquiries. The employer subsequently informed Mr Barbulescu that it had been monitoring his Yahoo Messenger communications and that it considered that he had breached company policy and had been using the account to send and receive personal messages. The employer produced evidence to this effect, which included message exchanges Mr Barbulescu had with his brother and fiancé containing very personal information pertaining to his health and sex life. Consequently, Mr Barbulescu was dismissed for unauthorised personal use of the internet.
Privacy at work under Article 8 ECHR
Article 8(1) of the European Convention on Human Rights (ECHR) states “everyone has a right to respect for his private and family life, his home and his correspondence”. Moreover, Article 8(2) provides that a public authority shall not interfere with the exercise of the right to privacy except in the interests of national security, public safety or the economic well-being of the country. This amounts to a right to communicate without interception or screening by a third party.
In view of his rights under Article 8 ECHR, Mr Barbulescu brought an action in the Romanian courts to challenge his dismissal. However, this was unsuccessful, as the court found that the employer was entitled to check that work was being done properly. Furthermore, it was clear that Mr Barbulescu had been given adequate notice of the company’s internet policy, rules against personal use of company resources and of the fact that surveillance would be undertaken.
Mr Barbulescu decided to appeal the decision and brought a claim against the Romanian government in the European Court of Human Rights, whereby he claimed that the government had failed to protect his rights to privacy and correspondence under Article 8.
The European Court of Human Rights dismissed the case and held that the monitoring of Mr Barbulescu’s internet usage was a proportionate interference in his Article 8 rights.
Although the purpose of Article 8 is to protect an individual against arbitrary interference in private communications, it is clear that employers do not need to refrain from interference, but rather their interference must be proportionate.
Above all, this case highlights the need for employers to put in place clear policies and avoid disproportionate responses.