The European Court of Human Rights (‘ECtHR’) in Bărbulescu v Romania held that the monitoring of personal messages on an internet messaging account constituted a breach of an employee’s Article 8 right to privacy.
Mr Bărbulescu breached his employer’s rules by using his work Yahoo messenger account, set up for dealing with client enquiries, for personal purposes. As a result, he was dismissed.
Mr Bărbulescu filed a complaint in Romania to challenge his dismissal but was unsuccessful. He then brought a claim against the Romanian government to the ECtHR claiming that the government had failed to protect his right to a private life under Article 8. The ECtHR found that the courts had correctly balanced the employer’s interests with the respect for the employee’s private life.
Mr Bărbulescu appealed to the Grand Chamber of ECtHR and his appeal was upheld – the Grand Chamber found that the lower courts had failed to strike a fair balance between his rights and the legitimate interests of his employer.
A crucial aspect of this decision surrounded the employee’s reasonable expectation of privacy. Whilst the employer’s internet usage policy strictly prohibited any personal use of its IT equipment, it did not expressly state that communications would be monitored. This is a cautionary tale for employers who should make it clear to employees that their communications may be monitored.
In the UK, legislation such as the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 regulate the monitoring of communications however employers should always consider employees article 8 rights. For more information on issues related to this case, please contact our employment team.