European Court of Human Rights: Monitoring Employee Communications

In Barbulescu v Romania (Application no. 61496/08) [2017] ECHR 742, the Grand Chamber of the European Court of Human Rights (ECtHR) clarified the right of employers to monitor employees’ private communications in the workplace. In doing so, it overturned the previous 2016 decision of the lower court as reported by us here.

Mr. Barbulescu was dismissed following alleged misuse of an instant messaging account which had been set up at his employer’s request for responding to customer queries. Through monitoring, the employer discovered that Mr. Barbulescu had used the account for personal purposes, which was strictly prohibited. However, Mr. Barbulescu was not notified that the content of his communications could be monitored. The ECtHR held that Mr. Barbulescu’s right to private life and correspondence under the European Convention on Human Rights had been infringed, and that a fair balance between the employer’s interests and respect for the employee’s private life had not been struck.

This decision confirms that employees based in the EU have a basic right to privacy at work meaning that, while employee monitoring is not prohibited, it is limited and subject to conditions. The ECtHR set out a number of factors to be considered when assessing whether monitoring is lawful, which include the following:

• Whether the employee has been notified that their communications may be monitored
• The extent of the monitoring and degree of intrusion into the employee’s privacy
• Whether the employer has legitimate reasons to justify the monitoring
• Whether there are adequate safeguards in place to protect the employee’s privacy

In light of this decision it would be prudent for employers to revisit their IT policies and monitoring practices. For more information on this case and its practical implications, see our update here.