Bărbulescu v. Romania

In this case, the applicant, Mr Bărbulescu, complained of a violation of Article 8 of the European Convention on Human Rights (ECHR) which protects the right to respect for private and family life, the home and correspondence. The European Court of Human Rights (ECtHR) found no violation.

The facts concern the dismissal of the applicant from his employment due to his use of company internet for personal purposes in violation of the company’s internal regulations. More specifically, the applicant was using an instant messaging account set up for the purpose of contacting clients. The applicant considered the employer’s monitoring of his communication to be a violation of Article 8.

In its reasoning, the ECtHR first established, based on its previous case law, that Article 8 is applicable to the context of this case. It stated that communications from business premises as well as from the home may be covered by the notions of “private life” and “correspondence” (including instant messaging) within the meaning of Article 8 of the Convention (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997 III; and Copland  v. the United Kingdom no. 62617/00, § 41, ECHR 2007 I). In order to ascertain whether the notions of “private life” and “correspondence” are applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected (ibid.; and as regards “private life”, see also Köpke v. Germany (dec.), no. 420/07, 5 October 2010). In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Köpke, cited above). [Para. 73, 74]. In the present case, it was questionable whether Mr Bărbulescu could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on internet use. [Para. 80].

The ECtHR thus proceeded to examine the obligations of the Sate in relation to Article 8 ECHR. The national authorities had been required to carry out a balancing exercise between the competing interests at stake, namely Mr Bărbulescu’s right to respect for his private life, on the one hand, and his employer’s right to take measures in order to ensure the smooth running of the company, on the other. [Para. 124].

The national Courts, while referring to the ECHR and Article 8 therein, had nonetheless failed to examine a number of elements that were necessary in order to properly carry out the balancing exercise mentioned above. Namely, the Courts:

• Omitted to determine whether Mr Bărbulescu had been notified in advance of the possibility that his employer might introduce monitoring measures, and of the nature of such measures. [Para 133].
• Had not examined the scope of the monitoring and the degree of intrusion into Mr Bărbulescu’s privacy. [Para. 134].
• Had not performed a sufficient assessment of whether there had been legitimate reasons to justify monitoring Mr Bărbulescu’s communications. [Para. 135].
• Had not sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the contents of Mr Bărbulescu’s communications. [Para. 136].

Having regard to those considerations, the Court concluded that the national authorities had not adequately protected Mr Bărbulescu’s right to respect for his private life and correspondence and that they had consequently failed to strike a fair balance between the interests at stake. There had therefore been a violation of Article 8. [Para. 141].