In Barbulescu v Romania, Barbulescu set up a Yahoo Messenger account for professional use, i.e. communicating with clients on behalf of his employer. He had been notified that his communications could be monitored. Records showed that he had used the Internet for personal purposes, contrary to the organisation’s policy. Barbulescu maintained he had only used Yahoo Messenger for professional purposes. He was shown a forty-five-page transcript of all the messages he had exchanged with his fiancée and his brother. They related to personal matters which included sensitive issues such as Barbulescu’s health and sex life. The employer dismissed Barbulescu for breaching company policy. The Romanian courts rejected Barbulescu’s complaint that the decision had been null and void since, by accessing his communications, his employer had violated his rights to ‘private’ correspondence. 

Barbulescu appealed to the European Court of Human Rights (ECtHR) claiming that the e‑mails were protected by Article 8 of the Convention in thateveryone has the right to respect for his or her private and family life, home and correspondence. However, the right does not apply where it is restricted by law and is necessary in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The ECtHR found that Article 8 applied because the monitoring involved Barbulescu’s “private life” and “correspondence”. However, Article 8 had not been breached because a fair balance had been struck between Barbulescu’s right to respect for his private life and correspondence and his employer’s interests.

The employer had acted within the context of a formal disciplinary procedure and Barbulescu had used Yahoo Messenger on the company’s computer during working hours. Barbulescu’s Yahoo Messenger account had been accessed in the belief that it had contained professional messages, and was legitimate, since Barbulescu had initially claimed that he had used it in order to advise clients.

The transcript of the communications was only used to the extent that it proved Barbulescu’s disciplinary breach that he had used the company’s computer for personal purposes during working hours. The contents of the communications and the identity of the parties with whom Barbulescu communicated were not revealed. It is not unreasonable for an employer to want to verify that employees are completing their professional tasks during working hours and the employer’s monitoring was both limited in scope and proportionate. A fair balance had been struck between Barbulescu’s right to respect for his private and his employer’s interests.

Some reports in the media that this judgment gives the green light for an employer’s ‘snooper’s charter’ are wide of the mark. This case is fact specific and the bottom line is that Article 8 did apply, but it was proved that in the circumstances the right could be restricted. Therefore, in considering the monitoring of communications, employers have to ensure that they do not breach human rights and data protection law. In addition, within the UK, there is a need to consider the lawful interception provisions in the Regulation of Investigatory Powers Act 2000, which was brought into force to address previous decisions by the ECtHR that the UK had failed to protect the right of privacy of those subject to monitoring of their communications.

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