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.

Furthermore, Bărbulescu lodged a criminal complaint against the statutory representatives of his former employer, alleging a breach of the secrecy of correspondence. The Court of Appeal dismissed the applicant’s appeal in a judgment of June 17, 2008, in view of the right of the employer to ensure the smooth running of the company and the disciplinary powers the employer may legitimately use to monitor the communications of its employees.  

However, in the recent ECHR ruling, the judges found that Article 8 of the European Convention of Human Rights (the right to respect for one's private and family life, his home and correspondence) is applicable in this case and ruled that county courts had failed to protect Barbulescu’s right to a private life in the workplace. The ECHR concluded that Bărbulescu had not been properly informed in advance by his employer of the extent and nature of the monitoring and of the possibility that the employer might even have access to the actual contents of his communications. Furthermore, the court criticized that there has been no sufficient assessment of whether there were legitimate reasons to justify monitoring and no consideration of the consequences of the monitoring and the subsequent disciplinary proceedings, which in the case at hand led to the most severe disciplinary sanction, namely dismissal.

Finally, the ECHR noted the rapid developments in monitoring at the workplace but emphasized nonetheless that proportionality and procedural guarantees against arbitrariness are essential, and the following factors should be treated as relevant:

• Whether the employee has been notified in advance of the possibility that the employer might take measures to monitor the employee and the nature of such measures;
• The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy including but not limited to the distinction between monitoring of the flow of communications and of their content;
• Whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content;
• Whether it would have been possible to establish a monitoring system based on less intrusive methods and measures and the consequences of the monitoring for the employee subjected to it and the use made by the employer of the results of the monitoring operation; and
• Whether the employee had been provided with adequate safeguards especially when the employer’s monitoring operations were of an intrusive nature.

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