DATA PROTECTION
ECHR: Monitoring of an employee’s use of the Internet and his resulting dismissal was justified.
Principal facts
The applicant, Bogdan Mihai Bărbulescu, is a Romanian national who was born in 1979 and lives in
Bucharest.
From 1 August 2004 until 6 August 2007 Mr Bărbulescu was employed by a private company as an
engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for
the purpose of responding to clients’ enquiries. On 13 July 2007 Mr Bărbulescu was informed by his
employer that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007
and that the records showed he had used the internet for personal purposes. Mr Bărbulescu replied
in writing that he had only used the service for professional purposes. He was presented with a
transcript of his communication including transcripts of messages he had exchanged with his brother
and his fiancée relating to personal matters such as his health and sex life. On 1 August 2007 the
employer terminated Mr Bărbulescu’s employment contract for breach of the company’s internal
regulations that prohibited the use of company resources for personal purposes.
Mr Bărbulescu challenged his employer’s decision before the courts complaining that the decision to
terminate his contract was null and void as his employer had violated his right to correspondence in
accessing his communications in breach of the Constitution and Criminal Code.
His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Mr Bărbulescu had been duly informed of the company’s
regulations. Mr Bărbulescu appealed claiming that e-mails were protected by Article 8 (right to
respect for private and family life, the home and correspondence) of the European Convention 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. In a final decision on 17 June 2008 the Court of Appeal
dismissed his appeal and, relying on EU law, held that the employer’s conduct had been reasonable
and that the monitoring of Mr. Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach. Furthermore, the Court of Appeal held
that the evidence before the first-instance court had been sufficient.
Decision of the Court
Article 8
The Court considered that the fact that the employer had accessed Mr Bărbulescu’s professional
Internet account and that the record of his communications had been used in the domestic litigation
to prove the employer’s case was sufficient to engage the applicant’s “private life” and
“correspondence”. It therefore found that Article 8 was applicable.
Firstly, however, it did not find it unreasonable that an employer would want to verify that
employees were completing their professional tasks during working hours and noted that the
employer had accessed Mr Bărbulescu’s account in the belief that it contained client-related
communications.
Secondly, Mr Bărbulescu had been able to raise his arguments related to the alleged breach of his
private life and correspondence before the domestic courts and there was no mention in the
ensuing decisions of the actual content of the communications. Notably, the domestic courts had
used the transcript of his communications only 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 therefore 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 of the European
Convention.
(Source: ECHR Press Release 013/2016 - Ownership of the contents: ECHR).
The applicant, Bogdan Mihai Bărbulescu, is a Romanian national who was born in 1979 and lives in
Bucharest.
From 1 August 2004 until 6 August 2007 Mr Bărbulescu was employed by a private company as an
engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for
the purpose of responding to clients’ enquiries. On 13 July 2007 Mr Bărbulescu was informed by his
employer that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007
and that the records showed he had used the internet for personal purposes. Mr Bărbulescu replied
in writing that he had only used the service for professional purposes. He was presented with a
transcript of his communication including transcripts of messages he had exchanged with his brother
and his fiancée relating to personal matters such as his health and sex life. On 1 August 2007 the
employer terminated Mr Bărbulescu’s employment contract for breach of the company’s internal
regulations that prohibited the use of company resources for personal purposes.
Mr Bărbulescu challenged his employer’s decision before the courts complaining that the decision to
terminate his contract was null and void as his employer had violated his right to correspondence in
accessing his communications in breach of the Constitution and Criminal Code.
His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Mr Bărbulescu had been duly informed of the company’s
regulations. Mr Bărbulescu appealed claiming that e-mails were protected by Article 8 (right to
respect for private and family life, the home and correspondence) of the European Convention 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. In a final decision on 17 June 2008 the Court of Appeal
dismissed his appeal and, relying on EU law, held that the employer’s conduct had been reasonable
and that the monitoring of Mr. Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach. Furthermore, the Court of Appeal held
that the evidence before the first-instance court had been sufficient.
Decision of the Court
Article 8
The Court considered that the fact that the employer had accessed Mr Bărbulescu’s professional
Internet account and that the record of his communications had been used in the domestic litigation
to prove the employer’s case was sufficient to engage the applicant’s “private life” and
“correspondence”. It therefore found that Article 8 was applicable.
Firstly, however, it did not find it unreasonable that an employer would want to verify that
employees were completing their professional tasks during working hours and noted that the
employer had accessed Mr Bărbulescu’s account in the belief that it contained client-related
communications.
Secondly, Mr Bărbulescu had been able to raise his arguments related to the alleged breach of his
private life and correspondence before the domestic courts and there was no mention in the
ensuing decisions of the actual content of the communications. Notably, the domestic courts had
used the transcript of his communications only 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 therefore 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 of the European
Convention.
(Source: ECHR Press Release 013/2016 - Ownership of the contents: ECHR).
