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Barbulescu v Romania

Case date: 05/09/2017

Court: ECtHR

Area/s of law: Article 8 ECHR

 

Background

The applicant worked for a private company that required its employees to have a Yahoo instant messaging account.  The company’s internal regulations prohibited personal use of company resources, including communications devices, but did not contain a reference to the possibility of the company monitoring employees’ communications.  The applicant had signed a copy of the regulations, and in July 2007 signed a further note reiterating this prohibition and stating that “the employer has a duty to supervise and monitor employees’ work.”  From 5-13 July 2007, the company monitored the applicant’s Yahoo messenger communications, which he had used for personal purposes, and it later dismissed him.  The national courts rejected the applicant’s challenge to his dismissal.  Before the ECtHR, the applicant argued that his dismissal had been based on a breach of his right to respect for his private life and correspondence and that, by not revoking that measure, the national courts had failed to comply with their obligations to protect his Article 8 rights.  The Fourth Section held by six votes to one that there had been no violation of Article 8. 

Decision

The Grand Chamber (the “GC”) held, by eleven votes to six, that there had been a violation of the applicant’s rights under Article 8.  The six dissenting judges provided a joint opinion. 

Key points

The GC emphasised that “private life” was a broad term not susceptible to exhaustive definition, and could include professional activities (at [70]-[71]).  “Correspondence” in article 8 was not qualified by any adjective, and it was clear from previous case law that communications from business premises could be covered by the notions of both “private life” and “correspondence” (at [72]-[73]). 

According to the GC, it did not appear that the applicant was informed in advance of the extent and nature of his employer’s monitoring activities, nor of the possibility that the employer might have access to the actual contents of his communications (at [78]).  The GC also noted that the applicant himself created the messenger account, and was the only person who knew the password (at [79]).  It concluded that in the present case the applicant’s communications were covered by the concepts of “private life” and “correspondence,” even though the account was set up on his employer’s instructions (at [80]-[81]).  The State had a positive obligation to ensure the applicant’s enjoyment of these rights enshrined in Article 8 ECHR (at [111]).

The GC accepted that States must be granted a wide margin of appreciation in assessing the need to establish a legal framework governing conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace (at [119]).  However, it considered that proportionality and procedural guarantees against arbitrariness were essential, identifying the following relevant factors (at [121]):

  • The adequacy and timing of an employer’s notification of the possibility of monitoring;
  • The extent of the monitoring;
  • Whether the employer had provided legitimate reasons to justify monitoring;
  • Whether it was possible to establish a monitoring system based on less intrusive methods than directly accessing content;
  • The consequences for the employee; and
  • Whether the employee had been provided with adequate safeguards.

The GC considered that the domestic courts had not considered these factors (either sufficiently or at all) in reaching their conclusions (see reasoning at [133]-[140]).  Consequently, they had not afforded adequate protection of the applicant’s right to respect for his private life and correspondence (at [141]).  

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