computer and the account he was instructed to create, for personal purposes, had
breached express provisions assumed under the internal regulation, and thus, the
employer terminated his contract.
The decision to terminate the contract was challenged by Mr. Bărbulescu before
the competent Romanian courts, alleging that the employer had breached the
applicant’s right to private life and specifically, secrecy of correspondence. The
Bucharest Court of Appeal finally ruled that, since the employee claimed during
disciplinary proceedings that he had not used Yahoo Messenger for personal purposes, the employer was entitled to check the content of communication, as this was
the only method for the employer to verify the defence.
Mr. Bărbulescu complained in front of the Court that his employer’s decision to
terminate the contract had been based on a breach of his right to respect for his
private life and correspondence, protected under Article 8 of the European Convention on Human Rights.
In accordance with its constant case law, the Court considered that communications through Yahoo Messenger account should be included in the notion of “private
life” and “correspondence” under Article 8 of the European Convention on Human
Rights.
21
The Court examined whether the right to respect for private life and correspondence is balanced with the employer’s interest and decided that the employer had a
legitimate interest because the following reasons were cumulatively met: the communications of the applicant were only accessed in the framework of disciplinary
proceedings, as a result of the applicant’s own allegations of not using the Yahoo
Messenger account for personal purposes; the monitoring itself was limited to the
Yahoo Messenger account, not extending to other communications from that
account or other records from the computer; the domestic courts did not attach
particular weight to the actual content of the applicant’s communications, they relied
on the transcript only to the extent that it proved the applicant’s disciplinary breach,
namely that he had used the company’s computer for personal purposes during
working hours.; the applicant did not convincingly explain why he had used the
Yahoo messenger account for personal purposes.
The Court concluded that although there is privacy at the workplace and
employers have no legal right to track their employees’ communications, such
interference might be acceptable if the right to respect for private life and correspondence is balanced with the employer’s interest.
As the judgement was appealed, the Grand Chamber issued, on 5 September
2017, its ruling
22 reversing the decision of the Fourth Section of the Court and
finding a violation of Article 8 of the European Convention on Human Right. In
particular, the Grand Chamber held that although Bărbulescu had been informed of
the ban on personal internet usage laid down in the employer’s internal regulation,
national courts had not taken into consideration whether he had been duly informed
21 https://www.echr.coe.int/Documents/Press_Q_A_Barbulescu_ENG.PDF.
22 See the Judgement of ECHR, Grand Chamber, Application no. 61496/08, 5 September 2017.
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breached express provisions assumed under the internal regulation, and thus, the
employer terminated his contract.
The decision to terminate the contract was challenged by Mr. Bărbulescu before
the competent Romanian courts, alleging that the employer had breached the
applicant’s right to private life and specifically, secrecy of correspondence. The
Bucharest Court of Appeal finally ruled that, since the employee claimed during
disciplinary proceedings that he had not used Yahoo Messenger for personal purposes, the employer was entitled to check the content of communication, as this was
the only method for the employer to verify the defence.
Mr. Bărbulescu complained in front of the Court that his employer’s decision to
terminate the contract had been based on a breach of his right to respect for his
private life and correspondence, protected under Article 8 of the European Convention on Human Rights.
In accordance with its constant case law, the Court considered that communications through Yahoo Messenger account should be included in the notion of “private
life” and “correspondence” under Article 8 of the European Convention on Human
Rights.
21
The Court examined whether the right to respect for private life and correspondence is balanced with the employer’s interest and decided that the employer had a
legitimate interest because the following reasons were cumulatively met: the communications of the applicant were only accessed in the framework of disciplinary
proceedings, as a result of the applicant’s own allegations of not using the Yahoo
Messenger account for personal purposes; the monitoring itself was limited to the
Yahoo Messenger account, not extending to other communications from that
account or other records from the computer; the domestic courts did not attach
particular weight to the actual content of the applicant’s communications, they relied
on the transcript only to the extent that it proved the applicant’s disciplinary breach,
namely that he had used the company’s computer for personal purposes during
working hours.; the applicant did not convincingly explain why he had used the
Yahoo messenger account for personal purposes.
The Court concluded that although there is privacy at the workplace and
employers have no legal right to track their employees’ communications, such
interference might be acceptable if the right to respect for private life and correspondence is balanced with the employer’s interest.
As the judgement was appealed, the Grand Chamber issued, on 5 September
2017, its ruling
22 reversing the decision of the Fourth Section of the Court and
finding a violation of Article 8 of the European Convention on Human Right. In
particular, the Grand Chamber held that although Bărbulescu had been informed of
the ban on personal internet usage laid down in the employer’s internal regulation,
national courts had not taken into consideration whether he had been duly informed
21 https://www.echr.coe.int/Documents/Press_Q_A_Barbulescu_ENG.PDF.
22 See the Judgement of ECHR, Grand Chamber, Application no. 61496/08, 5 September 2017.
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