Next week, Strasbourg judges will announce their decision in a human rights case concerning the monitoring of an employee’s electronic communications.
The European Court of Human Rights will deliver its Grand Chamber judgment in the case of Bărbulescu v. Romania (application no. 61496/08) at a public hearing on 5 September.
The case concerns the decision of a private company to dismiss an employee, the applicant Bogdan Mihai Bărbulescu, after monitoring his electronic communications and accessing their contents, and the alleged failure of the domestic courts to protect his right to respect for his private life and correspondence.
From 1 August 2004 until 6 August 2007, Bărbulescu was employed by a private company as an engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.
On 13 July 2007, Bărbulescu was informed by his employer that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed he had used the internet for personal purposes.
Bărbulescu replied in writing that he had only used the service for professional purposes. He was presented with a transcript of his communication including transcripts of messages he had exchanged with his brother and his fiancée relating to personal matters.
On 1 August 2007, the employer terminated Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.
Bărbulescu challenged his employer’s decision before the courts complaining that the decision to terminate his contract was null and void as his employer had violated his right to correspondence in accessing his communications in breach of the Constitution and Criminal Code.
His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Bărbulescu had been duly informed of the company’s regulations.
Bărbulescu appealed claiming that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights.
In a final decision on 17 June 2008, the Court of Appeal dismissed his appeal and, relying on European Union law, held that the employer’s conduct had been reasonable and that the monitoring of Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach.
Relying in particular on Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights, Bărbulescu complains that his employer’s decision to terminate his contract after monitoring his electronic communications and accessing their contents was based on a breach of his privacy and that the domestic courts failed to protect his right to respect for his private life and correspondence.