European Union: Important Decision Of The European Courts Concerning Privacy In The Workplace

Last Updated: 11 October 2017
Article by Harry Wall

Background

The Grand Chamber of the European Court of Human Rights (the "ECtHR") has reversed one of its own decisions in an important case concerning privacy rights in the workplace.

In Barbulescu v Romania1 a Romanian national was dismissed by his employer after monitoring of his electronic communications showed that he had been using company internet systems for personal purposes. After unsuccessfully bringing proceedings before the national courts in Romania, Barbulescu brought a case to the ECtHR arguing in accordance with Article 8 of the European Convention of Human Rights2  (the "Convention") that his employer's decision to dismiss him after monitoring his electronic communications and assessing their content was a breach of his privacy.

Last January the ECtHR had initially ruled that there had been no violation of Article 8 of the Convention, stating that the Romanian courts had struck a fair balance between Barbulescu's right to respect for his private life and correspondence and the interests of his employer, and that the monitoring of his communications had been reasonable in the context of disciplinary proceedings. The Grand Chamber has now reversed that ruling, stating that the national authorities had not in fact adequately protected Barbulescu's right to respect for his private life and correspondence in accordance with Article 8. Decisions of a chamber of the ECtHR can be referred by either party for reconsideration by the Grand Chamber of the ECtHR. The judgments of the Grand Chamber are final.

Key Takeaways for Employers

There was some discussion around whether the original decision of the ECtHR effectively gave employers carte blanche with regard to monitoring emails and other electronic communications in the workplace. The ruling was not in reality open to such broad interpretation, and allowed for monitoring only where certain requirements had been satisfied. The Grand Chamber decision has further clarified the checks and balances that employers must be cognisant of when considering disciplinary sanctions based on monitoring of electronic communications

The ECtHR does acknowledge that employers have a legitimate interest in ensuring the smooth running of a business, and that this can be achieved by checking that its employees are performing their professional duties adequately and with the necessary diligence. However, this reversal of its earlier decision makes it clear that at a minimum employers are expected to take certain considerations into account when contemplating engaging in monitoring the flow or content of electronic communications, in particular the following:

  • Prior Notification: Employees should be notified in advance of the possibility that the employer might take measures to monitor correspondence and other communications. Such advance notification should normally be clear about the nature of the monitoring to be undertaken.

    Barbulescu was aware of his employer's policy prohibiting personal use of company resources and had signed a copy of the policy. He was also aware of a notice circulated by his employer notifying staff reiterating the prohibition and setting out that an employee had been dismissed for breaching this rule. Barbulescu also signed a copy of this notice. The Court however deemed it relevant however that he did not appear to have been informed in advance of the nature or extent of his employer's monitoring activities, or that his employer would have access to the actual content of his messages.

    In order to qualify as prior notice, a warning from an employer must be given before the monitoring activities are initiated, especially where such activities entail accessing the content of employees' communications
     
  • Degree of Intrusion: Consideration must be given to the scope of the monitoring and the degree of intrusion in relation to employees' privacy. Barbulescu's employer recorded all of his (and his colleagues) communications in real time, accessed them and printed out their contents. A distinction should also be made between monitoring the flow of communications, and monitoring of content of communications
     
  • Legitimate Reasons: Equally an assessment must be made of whether there are legitimate reasons to justify monitoring the communications and accessing their content. As monitoring of content is more intrusive, it will require a greater degree of justification.

    The monitoring carried out in Barbulescu's case was very extensive. The employer had cited as justification the need to avoid the company's IT systems being damaged, the potential of liability for any illegal activities carried out by employees online and the potential disclosure of trade secrets as reasons for the level of monitoring in place. There was no suggestion however that Barbulescu's communications with his brother and fiancée had actually exposed the company to any of those risks.
     
  • Less Intrusive Methods: It will be necessary to examine whether it would be possible for an employer to achieve their aims by establishing a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee's communications.
     
  • Seriousness of Consequences: Consideration must be given to the potential implications for employees of having their communications monitored. The Romanian courts had not taken into account the seriousness of the consequences for Barbulescu of the disciplinary proceedings instigated on foot of the monitoring of his communications and which had culminated in him receiving the most severe disciplinary sanction available, namely dismissal from his employment.
     
  • Data Protection Principles: The ECtHR confirmed the importance of conforming to Data protection principles when seeking to implement monitoring of communications in the workplace, principles including necessity, transparency, purpose specification, legitimacy, proportionality and security. For further information in relation to the application of these principles, our previous insight on monitoring workplace communications is available here.
     
  • Procedural Fairness: Aside from the issues of monitoring, it must be ensured that the employee is afforded fair procedures in any disciplinary process instigated on foot of any monitoring undertaken.

Footnotes

1 Application No. 61496/08

2 The right to respect for private and family life, the home and correspondence

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.