Monitoring Employee Communications

Thursday, January 28, 2016 | Published by

A recent decision of the European Court of Human Rights (“the ECHR”), Bogdan-Mihai Bărbulescu c. Romania (“Bărbulescu”), serves as an important reminder to employers of the extent to which they may monitor their employees’ private life and communications.


Bogdan-Mihai Bărbulescu was employed as an engineer in charge of sales at a private company (“the Employer”) from 1 August 2004 until 6 August 2007. At the request of the Employer, during Mr Bărbulescu’s employment, he created a Yahoo Messenger account for the purpose of communicating with clients.

On 13 July 2007, the Employer notified Mr Bărbulescu that it had been monitoring his Yahoo Messenger account and that it had discovered that the account was being used for personal purposes, contrary to the Employer’s internal regulations. Following Mr Bărbulescu’s insistence that the account had been used for professional purposes only, the Employer obtained a transcript of his communications, which included communications between Mr Bărbulescu and his brother and fiancée regarding Mr Bărbulescu’s health and sex life. The Employer subsequently terminated Mr Bărbulescu’s employment on the ground that he had acted in a manner in breach the Employer’s internal regulations.

Through a complaint to the Bucharest County Court (“the County Court”), Mr Bărbulescu alleged that the termination was null and void as it relied on communications protected by the provisions of the Romanian Constitution and the Criminal Code that restricted access to an individual’s personal information and private correspondence. The County Court dismissed the complaint on the basis that the Employer had complied with the dismissal procedure set out in the Labour Code.

Mr Bărbulescu appealed the decision of the County Court to the Bucharest Court of Appeal (“the Court of Appeal”), arguing that (i) the communications were protected by Article 8 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”), which secures the right to respect an individual’s private and family life, their home and communications, subject to certain limitations, and (ii) he had not been granted permission to call a certain witness in the County Court proceedings, in breach of Article 6 of the Convention, which secures the right to a fair trial.

The Court of Appeal dismissed the appeal on both grounds, determining that the County Court had struck a proper balance between, on the one hand, the need to protect Mr Bărbulescu’s private life and communications and, on the other hand, the right of the Employer to supervise the functioning of its business. The Court of Appeal also found that there had been no breach of Mr Bărbulescu’s procedural rights in the County Court proceedings; the evidence before the court had been sufficient.

Having exercised all avenues of redress available within the Romanian justice system, Mr Bărbulescu filed a complaint to the ECHR, alleging violations of Articles 8 and 6 and of the Convention.

Article 8 of the Convention

The ECHR’s assessment of Article 8 of the Convention required a two step approach – its admissibility and its merits – given the argument of the Government of Romania that Article 8 of the Convention was not applicable as the communications in question were of a professional character, therefore not falling within the scope of Article 8 of the Convention.

(a) Admissibility

In the ECHR’s assessment of the admissibility of Article 8 of the Convention, it considered previous decisions of the ECHR which have held that the notion of private life is a broad concept and, in particular, those which have held that telephone calls from business premises, e-mails sent from work and information derived from the monitoring of personal internet usage could fall within the notion of “private life”.

Following the ECHR’s consideration of the relevant case law, it highlighted that the primary question in the instant case was whether Mr Bărbulescu had a reasonable expectation of privacy when communicating via Yahoo Messenger. In this regard, the ECHR noted that the Employer had an internal policy which strictly prohibited its employees from using its computers and resources for personal purposes, but that despite the existence of such policy there was a dispute as to whether Mr Bărbulescu was aware of its existence – in the proceedings the Government did not produce a copy of the relevant internal policy and the copy produced by Mr Bărbulescu did not contain the Employer’s signature.

The ECHR noted the intimate nature of the communications in question, which related to, amongst other things, Mr Bărbulescu’s health and sex life.

The ECHR found Article 8 of the Convention to be admissible as the Employer, by accessing and relying on the communications in question, had taken measures which concerned Mr Bărbulescu’s private life and correspondence.

(b) Merits

Turing to the merits of the Article 8 complaint, Mr Bărbulescu argued that there had been an interference with his private life and correspondence (as protected by Article 8 of the Convention) and that the interference had not been justified, as the provisions of the labour laws which permitted the interference lacked sufficient foreseeability with respect to the protection of private communications. Mr Bărbulescu also argued that the interference had not been proportionate to the aim being pursued, as alternative measures could have been undertaken which would have caused less damage to his rights whilst still achieving the aim of the Employer.

In its assessment of the arguments put forward by Mr Bărbulescu, the ECHR outlined three factors that governed its assessment of the complaint:

(1) The role of Article 8 of the Convention, which was not to compel a State to abstain from interference with an individual’s private life and communications, but, rather, to protect an individual from the State’s arbitrary interference with such rights.

(2) The State’s obligation with respect to Article 8 was a positive one since Mr Bărbulescu was employed by a private entity. The ECHR therefore had to determine whether the State, via the Court of Appeal, struck a fair balance between the need to protect Mr Bărbulescu’s private life and correspondence and the right of the Employer to supervise the functioning of its business.

(3) As Mr Bărbulescu raised his complaint regarding Article 8 within the framework of labour proceedings, the ECHR’s assessment was limited to the interference of Mr Bărbulescu’s private life and communications in the context of disciplinary proceedings.

With respect to Mr Bărbulescu’s argument that there had not been a sufficient justification for an interference with his private life and correspondence, the ECHR noted that the domestic courts had considered whether the Employer had acted within the framework of disciplinary powers provided for in the Labour Code, finding in the affirmative. The ECHR saw no reason to question such findings.

Turing to the question of proportionality, the ECHR found that:

(a) Mr Bărbulescu had informed the Employer that he had only used his Yahoo Messenger account for correspondence with clients, causing the Employer to believe that if it accessed the Yahoo Messenger account it would not encounter personal communications;

(b) The domestic courts did not attach particular weight to the content of the communications – only to the extent that they proved the disciplinary breach;

(c) No further personal information was examined; and

(d) It is reasonable for an employer to want to check that its employees are carrying out their duties despite there being no apparent harm caused to the employer.

Having regard to the above, the ECHR determined that the Employer’s monitoring of Mr Bărbulescu’s private life and communications were limited in scope and proportional and therefore not in breach of Article 8 of the Convention.

Article 6 of the Convention

All seven judges of the ECHR concluded that there had been no breach of Article 6 of the Convention, finding the Court of Appeal’s assessment of the same claim to be sufficiently reasoned and Mr Bărbulescu’s claim ill-founded.

Lessons for Employers

The decision of the ECHR in Bărbulescu confirms the longstanding principle that employers may take steps to protect their interests despite such steps interfering with certain rights and freedoms which employees enjoy. It is, however, imperative for employers to recognise the importance of having transparent policies regulating the use of company resources for personal purposes, consistent implementation procedures and proportionate enforcement measures.

Image by Walrick (Erick Ribeiro), via Wikimedia Commons: