Introduction
An employer that monitored an employee’s personal correspondence on a company messaging account, broke European human rights law guaranteeing privacy, according to the European Court of Human Rights (“ECHR”), in a landmark decision that will influence how employers monitor their staff’s use of electronic communication at work.

Background
From 1 August 2004 until 6 August 2007, the employee, Mr Bărbulescu, was employed as an engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. On 13 July 2007 Mr Bărbulescu was informed by his employer that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed he had used the internet for personal purposes.

Mr Bărbulescu replied in writing that he had only used the service for professional purposes. He was presented with a transcript of his communication including transcripts of messages he had exchanged with his brother and his fiancée relating to personal matters such as his health and sex life.

On 1 August 2007 the employer terminated Mr Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

Mr Bărbulescu challenged his employer’s decision before the Romanian courts, complaining that the decision to terminate his contract was null and void as his employer had violated his right to correspondence in accessing his communications in breach of the Constitution and Criminal Code.

His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Mr Bărbulescu had been duly informed of the company’s regulations.
Mr Bărbulescu appealed claiming that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention and that the first-instance court had not allowed him to call witnesses to prove that his employer had not suffered as a result of his actions. In a final decision on 17 June 2008, the Court of Appeal dismissed his appeal and, relying on EU law, held that the employer’s conduct had been reasonable and that the monitoring of Mr Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach. Furthermore, the Court of Appeal held that the evidence before the first-instance court had been sufficient.

European Court of Human Rights Judgment
However, the grand chamber of the ECHR has since ruled that employers cannot monitor their employees’ electronic communications, at least not without giving adequate prior notice.

The court decided that the national authorities had not adequately protected Mr Bărbulescu’s right to privacy. Ruling by 11 votes to six, the court said:
“[T]he national courts had failed to determine whether [the appellant] had received prior notice from his employer of the possibility that his communications might be monitored; nor had they had regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or the degree of intrusion into his private life and correspondence.”

Conclusion
This case will no doubt pique the interest of many employers who provide electronic messaging tools for employee use. The Strasbourg-based ECHR cannot establish new laws, but its decision could nonetheless form a significant legal precedent about when and how far the monitoring of employee’s personal correspondence is permissible.

Printable Version: Aperture Partners Advisory – The Right to Monitor Employee Digital Correspondence

The material contained herein is for general information purposes only and does not constitute legal or other professional advice. All rights reserved. If you require advice or further information, please contact Barry Crushell, Carmel Byrne, or your usual Aperture Partners contact. ©Aperture Partners 2017.