On September 5, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) ruled that a private company’s decision to dismiss an employee, after monitoring and accessing his instant messages sent from the workplace, violated the employee’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights. See ECtHR, Bărbulescu v. Romania [GC], no. 61496/08, ECHR 2017, Judgment of 5 September 2017, para. 141. The ECtHR held that Romanian authorities did not protect Bogdan Mihai Bărbulescu’s right to private life because the Romanian courts did not adequately balance Bărbulescu’s interest in privacy and the employer’s interest in monitoring communications sent from the workplace. The national courts, the European Court found, did not sufficiently assess the relevant factors of whether the employer gave prior notice to the employee that communications may be monitored; whether there was a reasonable justification for monitoring the employee’s communications; whether there were less intrusive measures available to the employer to achieve the same end; and the necessity of the disciplinary action taken against the employee. See id. at para. 124, 133, 139-41. This case adds to the ECtHR’s developing jurisprudence on the balance between the competing interests of an employee’s right to privacy and a private employer’s right to monitor communications; two previous cases determined that the State has a positive obligation to protect the employee’s right to privacy of telephone communications, email, and internet use that originates at work. See ECtHR, Halford v. the United Kingdom, no. 20605/92, ECHR 1997, Judgment of 25 June 1997; ECtHR, Copland v. the United Kingdom, no. 62617/00, ECHR 2007, Judgment of 3 April 20017.
The applicant in this case, Bărbulescu, is a Romanian national who was employed by a private company between August 2004 and August 2007. See id. at paras. 1, 11. The private company’s internal regulations, which Bărbulescu had reviewed, prohibited the personal use of computers, photocopiers, telephones, and fax machines. See id. at paras. 12, 14. The regulation did not state that the company may monitor an employee’s communications. See id. at para. 13. Prior to Bărbulescu’s dismissal, the company shared a notice that informed employees that one employee had been dismissed on disciplinary grounds due to her personal use of company resources, and stated that similar misconduct would be monitored and punished. See id. at para. 15.
The company recorded Bărbulescu’s electronic communications via Yahoo Messenger between July 5 to July 13, 2007, and asked Bărbulescu to explain his use of company resources for personal use. See id. at para. 18. After Bărbulescu contended that he used Yahoo Messenger only for work-related purposes, the company responded with another notice, which included a transcript of messages relating to personal matters exchanged between Bărbulescu, his brother, and his fiancée. See id. at paras. 19-22. Bărbulescu was subsequently dismissed. See id. at para. 23.
Bărbulescu challenged the dismissal through the Bucharest trial and appellate courts, arguing that pursuant to ECtHR jurisprudence, an employee’s telephone and email communication from the workplace are protected by Article 8 of the European Convention. Both courts rejected Bărbulescu’s claim. See id. at paras. 24-30.
Bărbulescu then submitted a complaint to the ECtHR. See id. at para. 55. In 2016, a chamber of the ECtHR held that Romania had not violated Article 8, finding that the domestic courts had struck a fair balance between the interests of the employer and Bărbulescu, and that monitoring Bărbulescu’s communications was reasonable in this context. See id. at paras. 56-60. At Bărbulescu’s request, the case was referred to the Grand Chamber. See id. at para. 61.
Right to Respect for Private Life
Before analyzing whether Romania violated Article 8 in this case, the ECtHR had to assess first, whether Article 8 applies to a case involving instant messages sent from a place of business and second, whether the facts of the case implicate the State’s positive or negative obligations of the right to private life. The ECtHR first affirmed that the right to private life under Article 8 of the European Convention applies to Bărbulescu’s case. See id. at paras. 71-81. The Court found that if restrictions to an individual’s professional life affect how the person develops relationships, their professional life falls under Article 8 protections; that, based on past jurisprudence, the right to respect for private life may attach to communications from both business premises and the home; and that restrictions of the right to privacy cannot “reduce the private social life in the workplace to zero.” See id. at paras. 71-73, 80-81. Previous European Court cases had only analyzed phone and email communication from business premises, determining both may be protected under Article 8. The Grand Chamber, though, held in this case that instant messaging communications similarly may fall under the right to private life. See id. at paras. 74-82.
The ECtHR then concluded that this case concerns the State’s positive obligations to ensure effective enjoyment of the right because the national courts condoned the monitoring of Bărbulescu’s communications and affirmed the lawfulness of Bărbulescu’s dismissal. See id. at paras. 108, 110-111.
The ECtHR found that positive obligations under Article 8 require Romania to adopt legislative guarantees that protect employees’ right to privacy in the work environment, but States, according to the ECtHR, have a wide margin of appreciation when developing those protections because few European States have yet to develop standards on privacy around communications originating from the workplace. See id. at paras. 113-20. Additionally, positive obligations under Article 8 require Romanian authorities to appropriately balance the competing interests between employees’ right to privacy and employers’ interest in monitoring communication. See id. at para. 124.
The Court considers certain factors relevant for States to consider when developing policies that balance these interests. Those factors are whether the employee was put on notice that their communications may be monitored, the extent of intrusion into the individual’s privacy, any legitimate justifications for the monitoring, whether there were less intrusive methods available to the employer to achieve the same end, the balance of the effect of monitoring on the employee and the usefulness for the employer, and the availability of safeguards for the employee. See id. at para. 121. Additionally, employees must have access to a remedy, and to qualify as prior notice, the Court noted, a warning from an employer must be given before monitoring is initiated. See id. at paras. 122, 133.
The ECtHR ultimately held that the national courts failed to balance Bărbulescu’s interest in privacy and the employer’s interest in monitoring communication, and that they, thus, violated Bărbulescu’s right to respect for private life under Article 8 of the European Convention. See id. at para. 124, 141. The ECtHR found that the national courts failed to determine whether Bărbulescu had been notified prior to implementing monitoring measures, did not question the scope of the intrusion into his privacy, and did not adequately assess whether the employer had a legitimate justification to monitor the communications as no evidence was presented to indicate that Bărbulescu’s activity presented a risk to a legitimate concern. See id. at paras. 133-135, 140. Additionally, the ECtHR stated that the national courts did not properly examine whether the goals of the employer could have been achieved through less intrusive means and whether the severity of the disciplinary action resulting in dismissal was appropriate. See id. at paras. 136-137, 140. Finally, the Court noted that it was unclear how, if at all, the national court accounted for the relevant factors, as enumerated by the Court, when making its decision. See id. at para. 132.
Development of ECtHR Jurisprudence on Surveillance at the Workplace
This case follows other recent cases that collectively have developed the ECtHR’s jurisprudence on the monitoring of telephone and internet use at work in the context of Article 8 of the European Convention. In Halford v. the United Kingdom, the ECtHR held that conversations held on office telephones fell within the scope of “private life” and “correspondence” protected in Article 8 of the European Convention; the ECtHR concluded that an employer’s interception of such calls as a means of bolstering the employer’s legal defense in a discrimination suit constituted a violation of the right to privacy. See ECtHR, Halford v. the United Kingdom, no. 20605/92, ECHR 1997, Judgment of 25 June 1997, paras. 46, 51. In Copland v. the United Kingdom, the ECtHR expanded its ruling in Halford to suggest that protections applied to work telephone calls under Article 8 should also be applied to emails sent from work and to information obtained through monitoring personal internet usage. See ECtHR, Copland v. the United Kingdom, no. 62617/00, ECHR 2007, Judgment of 3 April 20017, para. 41. The ECtHR ultimately held that the collection and storage of personal information related to telephone, email, and internet usage without an individual’s prior knowledge amounts to a violation of the applicant’s reasonable expectation to privacy under Article 8. See id. at paras. 42-44.
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