05 Sep 2017

The European Court of Human Rights has decided that monitoring an employee's emails was a breach of his right to private life and correspondence.

Barbulescu v Romania concerned the dismissal of an employee for sending personal emails on work equipment in breach of the employer's policy, and the alleged failure of the Romanian courts to protect his right to respect for his private life and correspondence.

The Grand Chamber of the European Court of Human Rights held by eleven votes to six that Article 8 of the European Convention on Human Rights (right to respect for private and family life, the home and correspondence) had been breached. The Romanian courts had failed to decide whether Mr Barbulescu had received prior notice from his employer of the possibility that his emails might be monitored and they had not taken into account the fact he had not been informed of the nature or extent of the monitoring or the degree of intrusion into his private life and correspondence. They had also failed to decide the reasons justifying the introduction of monitoring, whether the employer could have used measures entailing less intrusion or whether his emails might have been accessed without his knowledge.

The Court noted that an employer's ban on personal use of the internet at work could not reduce private social life in the workplace to zero. Employees must be warned before any monitoring starts that they should not use company resources for personal purposes, especially where this entails accessing the contents of employees' emails. The Court decided that the national authorities had not adequately protected Mr Barbulescu's right to respect for his private life and correspondence and had failed to strike a fair balance between the interests of the employer and employee.

Karen Plumbley-Jones, Managing Associate at Bond Dickinson, said: 

"This decision overturns a previous decision of the Chamber of the European Court of Human Rights. Employers should review their email and communications policies to ensure that, if they monitor employees' emails, this is clearly explained. If there is a ban on using company property to send personal emails or use the internet for personal purposes, this must also be spelled out.

"The impact on employers may be limited, as the decision is really about whether the Romanian courts adequately protected Mr Barbulescu's human rights. However, the Court's comment about how employees cannot have zero private social life at work is interesting."