On 12 January 2016, the European Court of Human Rights (the “Court”) issued its judgment in the case of Bărbulescu v Romania, pursuant to application no. 61496/08. In this decision, the Court ruled that, although there is privacy at the workplace and employers have no legal right to track their employees’ communications, such an interference might be acceptable in certain conditions.

The relevant facts

Mr. Bărbulescu was in charge of sales for a private company, for which purpose he was instructed by his employer to create a Yahoo Messenger account. As regards this account: (i) it was a Yahoo Messenger account having as purpose chat communication, (ii) it was created by the employee at the request of the employer for the purpose of responding to clients’ enquiries and (iii) the employee declared that he was using the account only for professional purposes (both under the internal regulation and at the separate request of the employer).

In order to check the manner in which professional tasks of Mr. Bărbulescu were completed, the employer had monitored Mr. Bărbulescu’s Yahoo Messenger account from the company’s computer. Furthermore, the employer alleged that Mr. Bărbulescu, by using the company’s computer and the account he was instructed to create, for personal purposes, had breached express provisions assumed under the internal regulation, and thus, the employer terminated Mr. Bărbulescu’s contract.

The decision to terminate the contract was challenged by Mr. Bărbulescu before the competent Romanian courts, alleging that the employer had breached the applicant’s right to private life and specifically, secrecy of correspondence. The Bucharest Court of Appeal finally ruled that, since the employee claimed during disciplinary proceedings that he had not used Yahoo Messenger for personal purposes, the employer was entitled to check the content of communication, as this was the only method for the employer to verify the defense.
Mr. Bărbulescu complained in front of the Court that his employer’s decision to terminate the contract had been based on a breach of his right to respect for his private life and correspondence, protected under Article 8 of the European Convention on Human Rights.

The Court’s assessment

1. In line with its constant case law, the Court considered that communications through Yahoo Messenger account should be included in the notion of “private life” and “correspondence” under Article 8 of the European Convention on Human Rights;

2. In the absence of a warning from the employer that such communications are subject to monitoring, an employee would have a reasonable expectation of privacy when communicating from a work related device. Also in the specific situation of Mr. Bărbulescu, the Court examined whether the applicant had a reasonable expectation of privacy when communicating from Yahoo Messenger account that he had registered at his employer’s request, even if the internal regulations of the employer prohibited the use of company assets for personal purposes;

3. The Court examined whether the right to respect for private life and correspondence is balanced with the employer’s interest and decided that the employer had a legitimate interest because the following reasons were cumulatively met:

• the communications of the applicant were only accessed in the framework of disciplinary proceedings, as a result of the applicant’s own allegations of not using the Yahoo Messenger account for personal purposes;
• the monitoring itself was limited to the Yahoo Messenger account, not extending to other communications from that account or other records from the computer;
• the domestic courts did not attach particular weight to the actual content of the applicant’s communications, they relied on the transcript only to the extent that it proved the applicant’s disciplinary breach, namely that he had used the company’s computer for personal purposes during working hours. There was no mention in their decisions of particular circumstances that the applicant communicated; the identity of the parties with whom he communicated is not revealed either;
• the applicant did not convincingly explain why he had used the Yahoo messenger account for personal purposes.

Conclusion

The Court concluded that although there is privacy at the workplace and employers have no legal right to track their employees’ communications, such an interference might be acceptable if the right to respect for private life and correspondence is balanced with the employer’s interest. In case of Mr. Bărbulescu the communications of the applicant were accessed in order to check the manner in which professional tasks of Mr. Bărbulescu were completed, in the framework of disciplinary proceedings, as a result of the applicant’s own allegations of not using the Yahoo Messenger account for personal purposes.

Kindly note that the Court’s decision is linked to a specific situation, and Court’s conclusions should be read in the light of the cumulative particularities of the case. Please be aware that the monitoring of the employee’s communication by the employer was neither a preventive measure nor a continuance one. Thus, this decision cannot be invoked as such in other similar situations and a full assessment of the concrete situation is necessary to be made on a case by case basis.

Implications and next steps

Considering the circumstances of the case, to the extent that employees’ activity is being monitored at the level of your company, the following aspects should be taken into consideration, among others, the following aspects: 

• The internal policy or regulation should include details relating to monitoring (reasons, circumstances etc.);
•  Clear rules should be set forth regarding the type of monitoring and the number of persons that can verify and monitor employees’ activity should be limited;
• The conditions of necessity and proportionality of the measure should be verified, in relation to the specific situation at hand.

Andrei Burz-Pinzaru
Partner, Reff & Associates Attorney at Law

Florentina Munteanu
Associate Partner, Reff & Associates Attorney at Law

Maria-Silvia Axinescu
Managing Associate, Reff & Associates Attorney at Law

Andrei Ionescu
Partner, Deloitte Risk Advisory

Cătălina-Teodora Stroe
Manager, Deloitte Risk Advisory