On September 5, the Grand Chamber of the European Court of Human Rights (ECHR)

established the boundaries of employee privacy in the European workplace in the case of

Bărbulescu v. Romania.1 The Court found that Romania failed to provide adequate protection for

its citizens' privacy because it did not balance the rights of employers and employees. Therefore,

the Court ruled that the applicant's Article 8 ECHR right to privacy and correspondence had been

breached.

Mr. Bărbulescu was an engineering salesman for a private company in Romania. He set up a

Yahoo account to deal with customer inquiries at the company's request. However, The

Company had prohibited using its equipment, such as computers and telephones, for employees'

personal use. Mr. Bărbulescu had signed an internal regulation copy outlining this policy on

December 20, 20062. On July 3, 2007, the company notified employees that they would be held

accountable for any inappropriate behaviour. Sometime between July 3 and July 13, 2007, Mr.

Bărbulescu signed a copy of this notice. Mr. Bărbulescu's Yahoo Messenger activity was

monitored from the 5th to the 13th of July without his knowledge or consent.3

The monitoring revealed that Mr Bărbulescu had used his yahoo messenger account for personal

uses. On July 13, Mr Bărbulescu was informed that his activity on Yahoo messenger was

monitored for a week, and it appeared to the company that he had been using his account for

personal purposes. Mr Bărbulescu denied any such usage. Later that day, he was given a 45-page

transcript of his yahoo messenger communication and was asked to justify them. The

communications revealed that Mr Bărbulescu had talked to his brother and his fiancé about

personal matters.4 Some of the communication was intimate. Most of the messages had been

1
“Bărbulescu v. Romania, The European Court of Human Rights, 5 September 2017, App no. 61496/08.”
2
Bărbulescu Judgment 2017, para 14.
3
Bărbulescu Judgment 2017, para 17
4
Bărbulescu Judgment 2017, para 21
received on Mr Bărbulescu's work account. Mr Bărbulescu, the applicant, accused the company

in writing of breaking the confidentiality of correspondence. Ultimately, Mr Bărbulescu was

fired on August 1, 2007, for violating the company's IT policy.5

The road to justice

The applicant initiated proceedings in Romania country court against his dismissal, which he

deemed unlawful. Under Article 8 of the European Convention on Human Rights, he claimed the

company's monitoring of his communications was an invasion of his privacy. The Court found in

favour of the company, ruling that they were within their rights to fire him as part of a

disciplinary process. Mr Bărbulescu filed an appeal in the Bucharest Court of Appeal against this

decision. However, the Court of appeals agreed with the previous Court's decision. It held that a

right balance was struck between the employer's and employee's interests. The appeal was

dismissed.

Without relief from the Romania courts, Mr Bărbulescu appealed and filed his application in the

European Court of Human Rights. The Court carefully analysed the relevant Romanian,

European Union and International. A six-to-one vote concluded that Mr. Bărbulescu's right under

Article 8 was not violated.6 Interestingly, the Court determined that an employer's need to verify

whether or not his employees were following employer policies was not unreasonable.

Taking matters to the European Court

In June 2016, Mr. Bărbulescu's request for a referral to the ECHR Grand Chamber was

approved. The issue before the Court was whether or not Romania had respected Mr.

5
Bărbulescu Judgment 2017, para 21-23.
6
“Bărbulescu v. Romania, App. No. 61496/08, Eur. Ct. H.R. (Fourth Section, 2016)”
Bărbulescu's right to privacy. The Court answered in the affirmative. With a vote of 11-6, the

Romanian courts and the Fourth Section Court were overturned by the Grand Chamber as it

recognised a violation of the applicant's right to privacy under Article 8.

The Grand Chamber offered both parties to clarify their stance during the proceedings. Romania

argued that the applicant had lied when confronted about his communications through the

company's equipment. They maintained that Mr. Barbulescu should have declared during the

disciplinary hearings that the content of his communication was private and that Mr.

Barbulescu's messages from the workplace had to be regarded as professional and not

personal.Furthermore, they claimed the applicant was adequately informed that his conversations

would be monitored. Conversely, the applicant argued that he had not received any such notice

was given . He argued that the previous courts erred in their decisions. Additionally, he claimed

that Romanian courts lacked the authority to review matters pertaining to his right to privacy and

took a stance that resulted in the judgement of his employer being upheld.

The first thing that came under the Court's consideration was whether section 8 applies to the

current situation. Relying on precedents such as Halford v. UK and Copland v. the UK, the Court

concluded that calls or messages sent from the workplace came under section 8 7. The Court

emphasised the "expectation of privacy" principle as an essential but non-determining element in

determining whether communications are covered by Article 8 protection. The court found that

the employer had recorded and saved both the content and the flow of the applicant's messages

while they were monitoring his communications. The Court further noted that although the

applicant had been given notice about monitoring, it was unclear whether the applicant had been

informed about monitoring to such an extent. The Court found that Article 8 applied

7
“Case of Bărbulescu v. Romania - Global Freedom of Expression’ (Global Freedom of Expression)”
notwithstanding the fact that it was unclear whether or not the applicant had a reasonable

expectation of privacy in light of the employer's stringent standards. The Court then went on to

discuss a state's obligation regarding the protection of the privacy of individuals. 8 According to

the Court, the state must decide whether or not the methods put in place to monitor employee

communication constitute abuse.9 In doing so, a state's domestic authorities must heed several

factors. Whether the employee had been informed about the monitoring and its nature, whether

an employer had legitimate reasons for such monitoring and whether such monitoring could be

done using less intrusive methods. To determine that the relevant criteria are met, the state is

obliged to give an employee a judicial remedy.10

The Court then proceeded to apply the above criteria to the facts of the present case. The

majority held that domestic courts failed to consider all the factors. They failed to ascertain if

Mr. Bărbulescu had been made aware of the full scope of the surveillance, whether the employer

had any justification for it, and whether it might have been accomplished less intrusively. 11

Subsequently, the Court overturned the previous decisions with a majority of 11-6. It concluded

that Mr. Bărbulescu's right to privacy was breached per Article 8.

The remaining six judges, however, disagreed with the majority decision. In a joint dissenting

opinion, they said that the majority had overemphasised the shortcomings of the review carried

out by the domestic courts. In their view, there were other remedies available to the applicant in

8
“Private & Confidential: What impact will the decision of the Grand Chamber of the European Court of
Human Rights in Bărbulescu v Romania have on the ability of employers to monitor employee
communications?’ (Bird & Bird | International Law Firm) >”
9
Bărbulescu Judgment 2017, para 115-120
10
Bărbulescu Judgment 2017, para 121
11
Bărbulescu Judgment 2017, para 134-140
Romania, and until they were all exhausted, it can not be rightfully inferred that the applicant's

right to privacy was violated.12

The minority opinion argued that while domestic courts carefully considered all the pertinent

factors, they had not erred. A few persons had access to the applicant's correspondence, and the

application was monitored for a brief period of time and only for disciplinary reasons. As a

result, they agreed that Romania had protected the applicant's privacy and his right under 8 had

not been violated.

The Bigger picture

The decision, in this case, will have implications well beyond the borders of Romania. First, the

European Court of Human Rights had not adjudicated a case like this before. It was the first time

this Court examined a case regarding monitoring an employee's communication by a private

employer. This decision will undoubtedly be of immense value to the employees who fear that

the employer might compromise their right to privacy. Second, The other member states will

take the appropriate actions in response to this court decision and may modify their systems to

comply with it to prevent accusations of similar European Convention violations against them.

This may lead to a more secure environment for the employees.

However, the judgement does not mean that an employer, under any circumstances, is

completely barred from monitoring the employee's communications. The Court provided

guidelines for the national authorities to follow when determining whether a particular action is

appropriate for the goal being pursued and whether the employee in question is protected against

12
Bărbulescu Judgment 2017, para 8
arbitrariness. The guidelines enunciated in the judgement will provide all the states in European

Union with a fresh perspective and a guide to their future policies 13 concerning employees' right

to private life.

The Bărbulescu decision has clarified employee rights under Article 8 European Convention on

Human Rights. However, the entire extent of these rights has not been determined by the

ECHR.14 Inasmuch as the Court determines whether Article 8 applies in such cases by

considering whether the employee had a "reasonable expectation of privacy," the right to privacy

in the workplace remains in peril. 15 This is because the test makes no allowance for the adverse

effects of overt surveillance, which are magnified in the workplace. Where they take place,

monitoring and surveillance are critical components of the right to privacy. They should always

be taken into account when applying Article 8. As more situations involving employee rights

arise, the Court might need to change how it interprets Article 8 of the Convention.

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