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Employment Law

Legal guidance - compliance - software

11 JAN 2018

Barbulescu v Romania, Application No: 61496/08

Barbulescu v Romania, Application No: 61496/08
European Court of Human Rights, Grand Chamber

5 September 2017

Monitoring an employee’s electronic communications while at work to check he was complying with the employer’s policy on internet use may breach the right to privacy if employees have not been warned that monitoring might take place.

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B’s employers discovered B was using his employer’s computer to send personal messages to his family. B denied this so his employers produced a lengthy transcript of all his communications. B argued this breached his right to privacy under Article 8 of the European Convention on Human Rights.

In a confusing judgment of the Grand Chamber of the European Court of Human Rights, the court (by a majority of 11 to 6) effectively overruled the decision of a lesser chamber of the court by holding that the ‘domestic authorities’ (ie the employment courts in Romania) had breached B’s right to privacy by failing to determine all the relevant matters, such as whether the employee had been given prior notice of the monitoring, the aim of the monitoring and whether that aim could have been achieved by less intrusive means. However, no compensation would be awarded because , the court decided (by a majority of 10 to 1 of those who agreed there had been a breach) that breach (by the employment courts) did not cause the losses B was seeking to recover, which all resulted from his dismissal (which was nothing to do with Romania’s employment courts). The remaining six judges agreed with the original court’s decision that the monitoring by his employer and by the courts struck a fair balance between B’s right to privacy and his employer’s interests.

Judgment: Barbulescu v Romania 61496_08.rtf