Qualified right to privacy
Labour & European Law Review Weekly Issue 459 02 March 2016
Although employees have a right to privacy under Article 8 of the European Convention on Human Rights, it is a qualified, not an absolute, right. So in Bărbulescu v Romania, the European Court of Human Rights decided that it was not a breach of an employee’s right to privacy for their employer to access their professional internet account.
Mr Bărbulescu, a Romanian national, worked as an engineer in charge of sales for a private company. At his employer’s request, he created a Yahoo Messenger account to respond to clients’ enquiries. Company regulations explicitly banned employees from personal use of the internet, but after monitoring his account for a week, the company found that Mr Bărbulescu had used the internet for personal purposes.
After initially denying the accusation, he was presented with a transcript of messages he had exchanged with his brother and his fiancée relating to personal matters such as his health and sex life. After a disciplinary hearing, he was dismissed for breach of the company’s internal regulations.
Mr Bărbulescu complained that by accessing his communications, his employer had violated his right to correspondence under Article 8 (the right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights.
Decision of lower courts
The first-instance court dismissed his claim on the grounds that the employer had complied with the dismissal proceedings under the Labour Code and that Mr Bărbulescu had been aware of the company’s regulations concerning internet use.
He then appealed claiming that his e-mails were protected by Article 8 and that the first-instance court had not allowed him to call witnesses to prove that his employer had not suffered as a result of his actions. The Court of Appeal dismissed his appeal, holding that the employer’s conduct had been reasonable, not least because the only way they could find out if Mr Bărbulescu had breached the rules on internet use was by monitoring his account. It also rejected his argument that the lower court had failed to allow him to present all his evidence.
Mr Bărbulescu appealed again, this time to the European Court of Human Rights, on the basis that the state had failed to stop his employer from interfering with his “private sphere”; and that the proceedings before the domestic courts had been unfair.
Decision of European Court of Human Rights
The Court held that, as Mr Bărbulescu’s employer had accessed his professional internet account and the record of his communications had been used in the domestic litigation, Article 8 was applicable.
However, the Court rejected the claim on the ground that it was not unreasonable for an employer to verify whether their employees were doing what they were supposed to do during working hours. In any event, Mr Bărbulescu’s employer had only accessed the account to find information that related to his professional activities, which was in itself a legitimate exercise.
The domestic courts had only used the transcript of his communications to the extent that it proved that he had used the company’s computer for his own private purposes during working hours and the identity of the people with whom he had communicated was not revealed. The Court concluded that the domestic courts had struck a fair balance between Mr Bărbulescu’s right to respect for his private life and correspondence under Article 8 and the interests of his employer. There had therefore been no violation of Article 8.
There were news headlines suggesting that this decision would give employers a very broad right to read an employee’s emails. This could be misleading as the case concerned an account that had been set up for professional purposes and so may not extend to cases involving personal email accounts. The crucial issue to weigh up in all cases is whether or not the employee had a reasonable expectation of privacy.