In its recent Grand Chamber judgment,¹ the European Court of Human Rights held that employers can monitor an employee's email only if they provide advance notice. By a vote of 11-6, the Court found that failure to provide such notice constitutes a violation of article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life.² This is the first time the Court has examined a case concerning the monitoring of an employee’s electronic communication by a private employer.³

This case, Bărbulescu v. Romania, concerned a private company's dismissal of an employee after monitoring his electronic communications and accessing their contents. From August 1, 2004 to August 6, 2007, Mr. Bărbulescu was employed as an engineer in charge of sales. At his employer’s request he created a Yahoo Messenger account in order to deal with clients’ inquiries.  In July 2007, his employer presented the employee with printouts of email indicating the employee's personal use of the company's email, as well as messages from his personal Yahoo account.

On August 1, 2007, the employee was fired for breaching the company's internal policy that prohibited personal use of company resources.

The employee complained before the European Court of Human Rights that his employer’s decision violated his right to respect for his private life and correspondence, and that Romanian domestic courts had failed to protect that right. Indeed, communications in the workplace are covered by Article 8 and the concept of private life and correspondence.

In an earlier ruling,⁴ however, the Fourth Section of the Court held 6-1 that there had been no violation of Article 8 of the Convention.

Mr. Bărbulescu, in accordance with Article 43 of the Convention,⁵ requested a referral of his case to the Grand Chamber.

The employee argued that, while his company’s regulations did forbid the use of the company resources for personal purposes, it did not contain any reference about the possibility of monitoring electronic communications and accessing the content of those communications.

The Grand Chamber considered Mr. Bărbulescu's request to be based on a "positive obligation"—i.e., an EU Member State's duty to take measures to ensure a fundamental right guaranteed by the European Convention on Human Rights is protected.

Although the monitoring was the alleged wrongdoing of a private company, it was up to the Romanian domestic court to strike a fair balance between the applicant’s right to respect for private life and his employer’s right to take measures ensuring the proper running of the company.

The Grand Chamber held that the monitoring was a violation of the Article 8, reasoning the domestic courts should have raised a number of fundamental issues, as discussed below.

The Court ruling does not mean employers can never monitor their employees’ communications. Rather, it underscores that when doing so, adequate and sufficient safeguards against abuse must accompany these measures.

The Grand Chamber specified the criteria the national authorities should apply when assessing whether a given measure is proportionate to the employer's goal of running its business, and whether the employee is protected against arbitrariness:

• Whether the employee has been given prior notice of the possibility that the employer might monitor electronic communications and correspondence. Such notification should be clear about the nature of the monitoring and be given in advance.
• The extent of the employer monitoring and the degree of intrusion into the employee’s privacy. In this regard, a distinction should be made between monitoring the flow of communication and monitoring its content.
• Whether there are legitimate reasons to justify monitoring the communication and accessing its actual content. Since monitoring of the content of communications is more invasive, it requires weightier justification.
• Whether it would have been possible to monitor the communications using less intrusive methods and measures than by directly accessing the content of the employee’s communications.
• The consequences for the employee of the monitoring concerned and the use made by the employer the information obtained, such as using it as grounds for discipline or dismissal.
• Whether the employee has been provided with adequate safeguards, especially when the employer’s monitoring operations are of an intrusive nature. Such safeguards should, in particular, ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.

While the Court looks at applications brought before it in concreto—i.e., on a case-by-case basis, other EU Member States must draw the necessary conclusions from the Court's judgments, and review and revise their policies accordingly, as similar complaints of European Convention violations could be lodged against them.

It should be emphasised that this ruling is part of a complex series of steps taken at an international level, involving the European Union and the Council of Europe. Indeed, the European Court did take into account both international and European standards.⁶ The decision, however, emphasized that most of the Member States recognize, in general terms, at the constitutional or statutory level, the right to privacy and secrecy of correspondence.

* Léonie Chabaud is an attorney at Fromont Briens, a member of Littler Global