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Bărbulescu v. Romania clarifies an employers' rights to monitor the contents of their employees' private electronic communications

White & Case Technology Newsflash

On January 12, 2016, the European Court of Human Rights ("ECtHR") delivered a judgement in Bărbulescu v. Romania regarding the employers' right to access their employees' private communication. Following the judgement, a number of mass media outlets warned that private messages at work can be read by European employers. However, the consequences of the judgement are not as straightforward as it might seem from the press coverage, and the ruling in no way constitutes blanket permission for employers to monitor the contents of their employees' private communication.

Facts of Case

In 2007, Mr. Bărbulescu was dismissed by his Romanian employer on grounds of a breach of the company's internal regulations. The breach consisted of using his professional Yahoo Messenger account, which Mr. Bărbulescu's employer asked him to set up specifically in order to reply to client queries (he was in charge of sales in the company), for personal purposes such as exchanging messages with his fiancée and brother. After being confronted with his conduct, Mr. Bărbulescu replied in writing that he had only used the account for the fulfilment of professional tasks. Subsequently, the employer presented him with a transcript of his messages proving the contrary and terminated Mr. Bărbulescu's employment.[1]

Mr. Bărbulescu filed a complaint with the Romanian courts claiming that his employer's practices violated Romanian constitutional and criminal rules, and also his right to respect for his private life under Article 8 of the European Convention on Human Rights ("ECHR").[2] As the Romanian Court of Appeal dismissed Mr. Bărbulescu's appeal, he filed an application with the ECtHR on grounds that Romania failed to protect his privacy from his employer and thus violated Article 8 of the ECHR.

ECtHR's Balancing Act

In the proceedings, the ECtHR undertook a balancing act between the right of Mr. Bărbulescu as an employee to respect for his private sphere and the legitimate interests of his employer in proving the disciplinary breach. In this respect, the ECtHR noted that in adjudicating the dispute, the Romanian courts attributed particular importance to the fact that Mr. Bărbulescu's employer had accessed the Yahoo Messenger account in the belief that it would only contain messages related to the fulfilment of professional tasks, as Mr. Bărbulescu initially claimed. Consequently, according to the ECtHR, since the employer accessed the messages on the assumption that they would solely be of a professional nature, the access had been legitimate and the employer thereby acted within its disciplinary powers.[3]

The ECtHR also considered the Romanian courts to have relied on the transcript of Mr. Bărbulescu private communication only to the extent that it proved a breach of his professional obligations. Moreover, as the employer did not access any other data or documents than the Yahoo Messenger account, the ECtHR took the view that the employer's monitoring was limited in scope and proportionate. Accordingly, the ECtHR concluded that, under the circumstances described above, there was no indication that the Romanian courts failed to respect a fair balance between the employee's right to respect for private life and the employer's legitimate interests in proving a breach of internal regulations.[4]

Reasonable Expectation of Privacy

However, it should be noted that the ECtHR expressly distinguished this case from situations in which employees have a reasonable expectation of privacy, because they deem the personal use of professional technical equipment to be allowed, or at least tolerated. Such reasonable expectation may arise in the absence of any prior warning that an employee's phone calls from a work telephone would be subject to monitoring, whereas the same is true for an employee's access to personal e-mail or general internet usage.[5]

Concluding Remarks and National Context

Further limitations on the employers' right to access their employees' private communication apply under national law, particularly under data protection and employment regulations. For instance, under the Czech Labor Code,[6] the employer is not allowed to interfere with his employee's privacy unless there is a serious reason for doing so corresponding to the special nature of that employer's business. If that is the case, the employer is nevertheless obliged to inform its employees of the extent of the monitoring and the manner in which it shall be conducted.

Hence, the ECtHR's recent ruling in Bărbulescu v. Romania does not provide employers with a universal shield against their employees' claims on grounds of respect for private life. The ECtHR merely stated that insofar as the employer's interference is limited in scope, proportionate and serves a legitimate objective, such as proving a disciplinary breach, a sufficient balance is ensured between the employer's interests and employee's rights under Article 8 of the ECHR.

Even though the judgement may be subject to review by the Grand Chamber of the ECtHR, it is, with a view to the aforementioned, in any event advisable to clearly communicate to employees what is the company's internal policy on the usage of work computers and cells phones for personal purposes.


[1] - Bărbulescu v. Romania, Application No. 61496/08, paras. 6 - 7
[2] - Ibid., Paragraphs 9 – 11
[3] - Ibid., Paragraph 57
[4] - Ibid., Paragraph 62
[5] - Ibid., Paragraphs 37 – 39; Halford v. United Kingdom, Paragraph 45; Copland v. United Kingdom, Paragraph 41
[6] - Section 316 (2), (3) of Act No. 262/2006 Coll., as amended

Veronika Merjava, a Legal Intern in the Firm's Prague office, assisted in the development of this article.


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