The Grand Chamber of the European Court of Human Rights has decided in Bărbulescu v Romania, that it was unlawful for an employer to monitor their employee’s professional email account. 

Overturning the decision of the European Court of Human Rights last year (weekly LELR 459), the Court found that there had been a violation of Article 8 – the right to respect for private and family life, the home and correspondence - of the Convention on Human Rights. 

Mr Bărbulescu, a Romanian national working for a private company, had created a Yahoo Messenger account to respond to clients’ enquiries at the company’s request. Although he was banned from personal use of the internet, the company found that he had used the account to exchange very personal messages with his brother and fiancée. After a disciplinary hearing, he was dismissed for breach of the company’s internal regulations. Mr Bărbulescu complained that by accessing his account, his employer had violated his right to correspondence under Article 8. 

The Court found that it was not unreasonable for an employer to verify whether their employees were doing what they were supposed to do during working hours. As Mr Bărbulescu’s employer had only accessed the account to find information that related to his professional activities, that was a legitimate exercise.  

The Grand Chamber, however, has now decided that Article 8 was violated as the Court had failed to ascertain whether Mr Bărbulescu had received prior notice that his communications might be monitored; had failed to determine the specific reasons justifying the introduction of the monitoring measures; whether the employer could have used measures entailing less intrusion into Mr Bărbulescu’s private life and correspondence; and whether the communications might have been accessed without his knowledge. 

Neil Todd of Thompsons Solicitors commented: “The judgement is an important one in the sense of establishing a right to privacy in the workplace and emphasising the importance of employers making employees expressly aware that their emails may be monitored”. 

A more comprehensive summary of the case will be provided in a forthcoming LELR. 

The full judgement can be read here.