An employee had used his employer’s Yahoo! messenger service (intended for work use) for personal communications, including with his fiancé and brother. His employer monitored those communications and sacked him for misuse of its messenger service. Did that monitoring of his private communications breach his privacy rights under Article 8 ECHR? No, said the Romanian courts, and Strasbourg’s Fourth Chamber said likewise. But on a further appeal to the Grand Chamber of the ECHR, that assessment has been reversed: the last word is that Article 8 was indeed breached here.
On September 5, the European Court of Human Rights issued a ruling in the case of Bărbulescu v. Romania that affirms employees’ right to privacy in the use of communications tools in the workplace. Although the ruling is strict, it aligns with the positions taken by the national courts of certain European Union Member States (e.g., Germany) and guidance issued by data protection authorities. And the criteria that the ECHR adopts for assessing the lawfulness of monitoring generally aligns with the requirements under the General Data Protection Regulation, which takes full effect on May 25, 2018. In our post, we summarize the ruling and identify key takeaways for companies that monitor workforce use of information systems and tools in the EU.
The European Court of Human Rights decided on June 22, 2017 that France’s DNA database for convicted criminals disproportionately interferes with individuals’ privacy rights because of its one-size-fits-all retention period and the failure to include a procedure to request erasure.
On Sept. 5, the European Court of Human Rights handed down a landmark judgement about privacy and monitoring at the workplace. The court referred to a case of a Romanian citizen named Bogdan Mihai Bărbulescu who was fired 10 years ago for using a work messaging account to communicate for private purposes and was convicted of doing so through the monitoring of his communications. In a judgment of Dec. 7, 2007, the County Court rejected Bărbulescu’s application and confirmed that his dismissal had been lawful. Bărbulescu appealed to the Bucharest Court of Appeal and repeated his previous arguments and contended in addition that the court had not struck a fair balance between the interests at stake, unjustly prioritizing the employer’s interests.
Tuesday’s decision by the European Court of Human Rights (ECHR) means that employers will now need to inform workers before they monitor their communications at work.
European Court of Human Rights on Finding the Right Balance in Respect of Employer Email Monitoring – An Opportunity Missed!
In the case of Bărbulescu v Romania the European Court of Human Rights held that an employer’s monitoring of their employee’s instant messenger account and the disclosure of these communications containing highly private, sensitive information was justified and therefore not a breach of Article 8 of the European Convention of Human Rights.