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Court in favor of worker in privacy ruling

September 5, 2017

Tuesday’s decision by the European Court of Human Rights (ECHR) means that employers will now need to inform workers before they monitor their communications at work.

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Image: imago/INSADCO


The European Court of Human Rights (ECHR) has overturned a previous judgement which had effectively given employers the right to privately monitor the activities of their employees on company messaging systems.

Companies and employers will now need to make sure that workers are aware of possible monitoring of their work email or messaging systems before any surveillance by management takes place. As well as that, the ruling suggests that employees will need to be informed beforehand of the extent of any monitoring as well as provided with justification for it.

The landmark decision, which was laid down by the Grand Chamber of the ECHR — the human rights court's highest chamber — in Strasbourg on Tuesday morning, came in the case taken by Bogdan Barbulescu, a Romanian software engineer who in 2007 was sacked by the private company he worked for after they discovered he had used a company messaging system to chat with family members about personal matters.

In January 2016, the ECHR ruled for the employer but Tuesday's ruling in favor of Mr.Barbulescu will have major ramifications for the privacy rights of workers throughout Europe.

A breach of privacy?

In July 2007, Mr. Barbulescu's employer informed him that his Yahoo Messenger account — which his company had asked him to set up for work purposes — had been monitored, showing him to have used the work account to chat with his brother and his fiancée about personal matters. He was fired for breaching the company's internal regulations, which prohibited the use of company resources for personal purposes.

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The Bucharest resident took legal action against the company in Romania, but his complaint and subsequent appeals were dismissed in 2008 with the ruling at the time determining "that the employer's conduct had been reasonable and that the monitoring of Mr. Barbulescu's communications had been the only method of establishing whether there had been a disciplinary breach."

However, lawyers for Mr. Barbulescu argued that the decision to terminate his employment had been based on a breach of his privacy and that software had been used to obtain messages that included sensitive details about his private life. This, it was argued, contravened Article 8 of the European Convention on Human Rights — namely the right to respect for private and family life, the home and correspondence.

Clearer guidelines ahead

In its judgement 18 months ago, the ECHR ruled that there had been no breach of Article 8 and that a fair balance had been struck between Mr Barbulescu's right to privacy and to the interests of his employer. That decision gave employers a particularly strong hand in how they dealt with employees' online messages.

However, Tuesday's ruling, the final one in this long-running case, determined that Romanian judges had failed to protect Mr. Barbulescu's right to privacy. The decision will cheer workers' rights groups, who have previously argued for clearer policies and guidelines for the use of the internet and messaging systems during working hours.

For Guus Heerma van Voss, Professor of Labor Law at the University of Leiden in the Netherlands, the ruling is significant from the point of view that it creates "a bottom line" in terms of workers' privacy.

"Now, the employer principally has to inform employees in advance when their computer accounts are checked by the company;" he told DW. "This is a sort of bottom line. This does not mean that once you have informed your employees you are entitled to check at random their accounts. 

"Besides, there are more rules to obey. Employers need reasons to monitor employees’ internet use, and must be able to make clear that there are no less intrusive ways to achieve their goal."