"Bărbulescu" guidelines for monitoring online communications of employees

15 September 2017

Does an employer have the right to monitor its employees' communications while they are at work? Bogdan Mihai Bărbulescu, who was dismissed for infringement of his employer's internal regulations prohibiting personal use of computers and the internet, appealed to the European Court of Human Rights (twice!) before finally obtaining a ruling that his right to the respecting of his private life had been violated. Thanks to Mr Bărbulescu's perseverance, employers now can rely on guidelines from the Grand Chamber of the European Court of Human Rights, issued in its judgment of 5 September 2017.

Mr Bărbulescu in Strasbourg

On 15 December 2008, Romanian national Mr Bărbulescu lodged a claim with the European Court of Human Rights alleging breach of his right to respect for his private life as enshrined in Article 8 of the European Convention on Human Rights. He complained about the monitoring by his employer of his Yahoo Messenger communications, which had resulted in his dismissal for infringing the company's internal regulations prohibiting personal use of computers and the internet.

In its judgment of 12 January 2016, the Court held that there had been no violation of Article 8 of the Convention. For a summary, we refer to our earlier analysis (Eubelius Spotlights March 2016).

However, Mr Bărbulescu requested that his case should be referred to the Grand Chamber of the Court. This is only possible if a case is found to raise a serious question or a serious issue of general importance. His request was accepted, and the Grand Chamber considered his case.

The Grand Chamber's judgment

The Grand Chamber rendered its judgment on 5 September 2017 (see http://hudoc.echr.coe.int/eng?i=001-177082). This time, Mr Bărbulescu's claim of violation of Article 8 of the Convention was upheld.

In the judgment, the Court acknowledged that an employer has the right to monitor whether its employees are performing their professional duties adequately and diligently. This right is, however, limited, as it competes with the employees' right to respect for their private life. The Court stated that measures to monitor employees' correspondence and other communications must always be accompanied by adequate and sufficient safeguards against arbitrariness and abuse, so that a fair balance is struck between the competing interests of the employer and the employees.

The following guidelines can be found in the judgment:

  • The employees must be notified, clearly and in advance, of the possibility that the employer might take measures to monitor their communications, and of the nature and implementation of such measures. The employer cannot access the actual content of the communications unless the employee has been notified in advance of that possibility.
  • The extent of the monitoring and the degree of intrusion into the employee's privacy are relevant factors in assessing whether a fair balance has been struck. The monitoring of a flow of communications is assessed differently from the monitoring of their content. Other criteria used are whether the monitoring relates to all or only part of the communications, and whether there are limitations in time and space and with regard to the number of people who have access to the results of the monitoring.
  • The employer must provide legitimate reasons to justify the monitoring. The monitoring of the content of communications requires weightier justification. 
  • The employer must consider whether it is possible to establish a monitoring system based on less intrusive methods and measures.
  • Further relevant factors are the consequences of the monitoring for the employees subjected to it, and the use made by the employer of the results of the monitoring operation. 

In the case at hand, the Court emphasised that Mr Bărbulescu did not appear to have been informed in advance of the extent and nature of his employer's monitoring activities, or of the possibility that his employer might have access to the actual content of his messages. The Court found that the national courts had failed to examine the relevant factors as set out above. The Court thus reached the conclusion that the domestic authorities had failed to strike a fair balance between the interests at stake.

Guidelines for employers

Employers who are considering or using measures to monitor their employees have every reason to adhere to these guidelines as defined by the Court. Monitoring measures easily qualify as an infringement on employee privacy, and therefore demand a methodical and prudent approach. Employers facing claims of violation of their employees' right to respect for their private life will be better placed to justify their monitoring measures if they have followed the Court's guidelines.

Apart from the Court's decision, it goes without saying that employers in Belgium must also respect the binding national rules on this matter, such as CLA no. 81 of 26 April 2002 regarding the protection of the privacy of employees in relation to the monitoring of online electronic communications, the Act of 8 December 1992 on the protection of personal data, and the rules prohibiting the accessing of communications sent by others.