European Court of Human Rights limits employers’ right to monitor employee emails

A decision by the European Court of Human Rights of 5 September states that monitoring of an employee’s electronic communications amounted to a breach of his right to private life and correspondence (Article 8 of the European Convention on Human Rights).

The judgement in the case of Bărbulescu v. Romania (application no. 61496/08) concludes that the national authorities had not adequately protected Bogdan Mihai Bărbulescu’s right to respect for his private life and correspondence. In particular, the national courts had failed to determine whether  Bărbulescu had received prior notice from his employer of the possibility that his communications might be monitored.

His communications consisted of messages he had exchanged with his brother and his fiancée relating to personal matters, some of the messages being of an intimate nature. The company terminated  Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes. The court noted that although it was questionable whether  Bărbulescu could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on Internet use, of which he had been informed, an employer’s instructions could not reduce private social life in the workplace to zero. The right to respect for private life and for the privacy of correspondence continued to exist, even if these might be restricted in so far as necessary.

This decision, taken by the Grand Chamber which consists of 17 judges, is final (Article 44 of the Convention).

However, the Court says in a separate Q&A document that companies can still in some circumstances monitor employees if they suspect that they are using the Internet at work for private purposes.  The Court considers that States should ensure that, when an employer takes measures to monitor employees’ communications, these measures are accompanied by adequate and sufficient safeguards against abuse.

Privacy in the work place and wearable technologies

Privacy Laws & Business is considering running a one-day workshopr on data protection issues in employment, including monitoring of employees and privacy issues posed by use of wearable technologies. To register your interest, please email [email protected]

See the judgement at http://echr.coe.int/Pages/home.aspx?p=home