Columbia University in the City of New York

Case of Bărbulescu v. Romania

Closed
Expands Expression
MODE OF EXPRESSION
Electronic / Internet-based Communica on

DATE OF DECISION
September 5, 2017

OUTCOME
ECtHR, Ar cle 8 Viola on

CASE NUMBER
App. No. 61496/08
REGION & COUNTRY
Romania, Europe and Central Asia
JUDICIAL BODY
European Court of Human Rights (ECtHR)

TYPE OF LAW
Employment Law/Workplace, Interna onal/Regional Human Rights Law

THEMES
Privacy, Data Protec on and Reten on

TAGS
Privacy
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C AS E ANALYSIS 
Case Summary and Outcome
The Grand Chamber of the European Court of Human rights held Romania responsible for having failed in its obliga ons to protect an individual’s
right to privacy when it didn’t strike a fair balance between the applicant employee’s rights and the rights of his employer. The applicant had been
dismissed from his job at a private company a er disciplinary proceedings in which his instant messaging communica ons sent from a workplace
computer were read by the employer in order to corroborate that he had used the company’s property for personal purposes. The applicant
brought a complaint before domes c courts claiming that his dismissal was unlawful given that his employer had violated his right to privacy by
illegally monitoring his private communica ons. Both the Bucharest County Court and the Bucharest Court of Appeal ruled that the dismissal had
been lawful. However, the Grand Chamber reasoned that the domes c courts had not properly considered all relevant elements and had therefore
failed to strike a fair balance between the applicant’s and employer’s rights. Because of this, it concluded that Romania had not afforded adequate
protec on to the applicant’s right to respect for his private life and correspondence under Ar cle 8 of the European Conven on on Human Rights
(ECHR).

Facts
Mr. Bogdan Mihai Bărbulescu (applicant) was employed as a sales engineer by a private company in Romania (employer). At the request of his
employer, he created a Yahoo Messenger account meant to be used to respond to customers’ enquiries. On December 20, 2006 the applicant
signed a copy of the employer’s internal regula ons which contained prohibi ons regarding the use of workplace computers for personal purposes.
Between July 3 and 13, 2007 the applicant signed a copy of a no ce which also informed employees that they should not use the internet in the
workplace for non-work ma ers. The no ce also stated that the employer had a duty to “supervise and monitor employees’ work”. From July 5 to
13, 2007 the applicant’s communica ons sent and received at his workplace through his Yahoo Messenger account created at the request of his
employer were recorded in real me by the employer.

On July 13, 2007 the applicant was summoned by his employer and informed that his Yahoo Messenger communica ons had been monitored and
that there was evidence that he had been using it for personal communica ons as his internet ac vity was greater in comparison to that of his co-
workers. The summoning note did not indicate whether the actual content of the communica ons had also been monitored. The same day the
applicant responded in wri ng that he had only used Yahoo Messenger for work-related purposes.

Later that day, the applicant was summoned by the employer and asked to provide explana ons regarding a 45-page transcript which contained
messages the applicant had exchanged from his work Yahoo Messenger account with his brother and his fiancée during the period in which he had
been monitored. The messages related to personal ma ers and some were of an in mate nature. The applicant then informed the employer in
wri ng that, in his view, it had commi ed a criminal offense by viola ng the secrecy of correspondence. The employer terminated the applicant’s
employment contract on August 1, 2007.

The applicant challenged the dismissal before the Bucharest County Court claiming that by monitoring his communica ons and accessing their
content his employer had infringed criminal law which made the dismissal unlawful. He also complained that the employer had disclosed his
personal communica ons to others involved in the dismissal procedure. He submi ed the full transcript of the communica ons as evidence in the
proceedings.

The County Court considered that the dismissal was lawful. The Court reasoned that, because the applicant had maintained during the dismissal
procedure that he had not used Yahoo Messenger for personal purposes, an inspec on of the communica ons’ content was the only way in which
the employer could verify the validity of that argument. The Court also considered that the Labour Code invested employers with the right to
monitor the use of company computers by employees and that whether the employer’s ac ons were illegal or not under criminal law was not
material to determining the validity of the disciplinary proceedings.

The applicant then appealed to the Bucharest Court of Appeal claiming the County Court had unjustly priori zed the employer’s interest over his
right to privacy. He also argued that neither the company regula ons nor the no ce he had been provided with had contained any indica on that
his communica ons could be monitored. However, the Court of Appeal upheld the decision of the County Court ci ng the European Direc ve
95/45EC in support of its decision.

On September 18, 2007 the applicant lodged a criminal complaint against the statutory representa ves of his employer. However, the prosecutor’s
office ruled that there was no case to be pursued because the employer was the owner of the computer and the internet connec on which gave
him the right to monitor the employee’s internet ac vity. The office also noted that, as employees had been informed of the prohibi on on the use
of office internet for personal purposes, the monitoring had been foreseeable. Although the Romanian system provided mechanisms for the
applicant to challenge the prosecu ng authori es’ decision, he did not make use of these mechanisms.

The applicant then brought a pe on against Romania before the European Court of Human Rights. On January 12, 2016 a chamber of the Court’s
Fourth Sec on decided by six votes to one that, while the case concerned the applicant’s right to privacy, that right had not been violated by
Romania. The Chamber highlighted that the applicant had had the opportunity to be heard by the domes c courts who had struck a fair balance,
within their margin of apprecia on, between the applicant’s right to respect for his private life and the employer’s interest.

The applicant requested referral to the Grand Chamber which was granted. The Grand Chamber issued its decision on September 5, 2017.

Decision Overview
The issue for the Grand Chamber of the European Court of Human Rights to decide was whether Romania had complied with its obliga ons to
protect the applicant’s right to privacy.

Romania argued that the applicant’s messages sent from the workplace computer had to be considered professional, as opposed to personal, in
nature; that the applicant had the opportunity to indicate that the messages were private during the disciplinary proceedings but he opted to claim
they were work-related; that the applicant had been given sufficient indica ons that his communica ons could be monitored by his employer; that
the applicant had had the opportunity to challenge the alleged viola on of his right to privacy through other mechanisms provided for by the
Romanian legal system but he opted to only challenge the dismissal in the labor jurisdic on; and that the domes c courts had performed an
appropriate balancing exercise between the applicant’s rights and the employer’s interest.

The applicant asserted that he had not received prior no fica on that his communica ons were being monitored and that the domes c courts had
not given proper weight to this element in their decisions. He also argued that the domes c labor courts had jurisdic on to examine the issues
rela ng to his right to privacy but had chosen instead to adopt a rigid approach aimed solely at upholding the employer’s decision.

The Court began its analysis by examining whether Ar cle 8 of the European Conven on on Human Rights (ECHR) was applicable to the case. For
this purpose, it reviewed precedent in which it had been recognized that communica ons such as phone calls or e-mails sent from businesses
premises were protected by the principle of privacy of correspondence. It also highlighted the principle of “expecta on of privacy” as a significant
but not determinant factor for assessing whether communica ons are protected by Ar cle 8. It concluded that instant message communica ons
qualified as “correspondence” even when sent from a person’s workplace.

The Court then noted that during the monitoring process both the flow and the content of the applicant’s communica ons had been recorded and
stored by the employer. The Court also noted that, while it was clear that the applicant had been informed of the ban on the use of company
internet for personal purposes, it was less clear whether the applicant had been informed prior to the monitoring that such monitoring could take
place. It considered that the applicant did not appear to have been informed “of the extent and nature of his employer’s monitoring ac vi es, or of
the possibility that the employer might have access to the actual contents of his communica ons”. While acknowledging that it was unclear to what
extent the applicant could have a reasonable expecta on of privacy under the employer’s restric ve regula ons, the Court concluded that Ar cle 8
was applicable as “employer’s instruc ons cannot reduce private social life in the workplace to zero”. [paras. 78-80]

The Court then proceeded to analyze the extent of State’s posi ve obliga ons under Ar cle 8, reitera ng that these obliga ons some mes require
States to establish a legisla ve framework which secures respect for private life in the rela ons between individuals. The Court acknowledged that,
given the nature of employment rela ons, “States must be granted a wide margin of apprecia on in assessing the need to establish a legal
framework governing the condi ons in which an employer may regulate electronic or other communica ons of a non-professional nature by its
employees in the workplace”. However, it considered that this discre on should not be absolute and that domes c authori es have an obliga on to
ensure that any measures introduced by employers to monitor employees’ communica ons are accompanied by sufficient safeguards against abuse
[para. 115-120].

The Court then listed a number of factors domes c authori es are required to treat as relevant, these being: whether the employee has been
no fied of the possibility that his communica ons may be monitored by the employer; the extent of the monitoring and the degree of the intrusion
onto the employee’s privacy; whether the employer has provided legi mate reasons to jus fy the monitoring; whether it would have been possible
to establish a monitoring system based on less intrusive methods; the consequences of the monitoring for the employee subjected to it; and
whether the employee had been provided with adequate safeguards. The Court then noted that domes c authori es have an obliga on to provide
employees whose communica ons have been monitored access to a remedy before a judicial body with jurisdic on to determine whether the
relevant criteria were observed and whether the impugned measures were lawful. [para. 121]

The Court went on to assess whether the domes c courts had complied with these standards in the proceedings ini ated by the applicant. The
Court noted that the domes c courts had correctly iden fied the interests at stake and the applicable legal principles. However, it also iden fied
several shortcomings in the review performed by the domes c courts: they had omi ed to determine whether the applicant had been informed in
advance of the possible monitoring of his communica ons and of the scope and nature of such monitoring; they had not examined whether the
degree of intrusion into the applicant’s private life was acceptable even though the employer had recorded all of the employee’s communica ons in
real me; they had not conducted an assessment of whether the employer had legi mate reasons to jus fy such strict monitoring; they had not
considered whether the employer’s aim could have been a ained through less intrusive methods; they had not sought to verify at which precise
point in me the employer had accessed the content of the applicant’s communica ons. [para. 134-140]

Thus the Court concluded by eleven votes to six that “the domes c authori es did not afford adequate protec on of the applicant’s right to respect
for his private life and correspondence and that they consequently failed to strike a fair balance between the interests at stake”. [para. 141]

Judges Raimondi, Dedov, Kjølbro, Mits, Mourou-Vikström And Eicke issued a joint dissen ng opinion. The dissen ng judges considered that the
majority had unjus fiably focused its enquiry solely on the inadequacies of the review performed by the domes c labor courts when determining
whether Romania had failed in its obliga on to protect the applicant’s privacy and had ignored the fact that the Romanian legal system provided the
applicant with an assortment of other legal remedies for the protec on of his privacy that he had failed to pursue. In these circumstances, the
dissen ng judges concluded that a viola on of Ar cle 8 could not be found in the absence of “any evidence to suggest that the domes c remedies
either individually or cumula vely were not sufficiently available or effec ve to provide the protec on required under Ar cle 8”. [para. 16]

The dissen ng judges also considered, unlike the majority, that the analysis made by the domes c labor courts had not been defec ve as they had
considered the relevant elements and acted within their margin of apprecia on. The dissent highlighted that the monitoring the applicant was
subjected to was of a limited me, that it had only concerned his electronic communica ons and not other aspects of his private life, that the
results of the monitoring opera on had been used solely for disciplinary proceedings, and that only those involved in the proceedings had had
access to them. Based on this, the dissen ng judges concluded that, even adop ng the majority approach, they could not find Romania had failed
to protect the applicant’s privacy.

D E C I S I O N D IRE CT IO N 
Expands Expression
The decision expands expression by finding that communica ons sent from and received at a person’s workplace are protected by the right to
privacy and that States have an obliga on to protect such privacy against unjus fied interference from other individuals, including employers.
However, as noted by the dissen ng judges, the approach adopted by the majority in assessing whether Romania had complied with its obliga ons
is ques onable because it did not consider the totality of the country’s legal framework and all the remedies available within the whole system
basing its analysis only on the quality of the review performed by a single set of courts.

The Court used this judgment to provide specific guidelines for employers, (h ps://inforrm.org/2017/09/12/case-law-strasbourg-barbulescu-v-romania-monitoring-
of-an-employees-communica ons-held-to-be-viola on-of-ar cle-8-echr-sara-mansoori/) which conform with the relevant United Na ons, Council of Europe
standards and EU legisla on, such as the General Data Protec on Regula on, on how to monitor employees’ communica ons at work.

G LO BAL P E RSP E C TIVE 

C AS E S I G N IF IC AN C E 

O F F I C I AL CASE D O C U M E N TS 

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