Right to Privacy: Messaging your friends at work? You may be watched

Case of Bărbulescu v Romania (Application no. 61496/08) (12 January 2016)

Bǎrbulescu v Romania concerns an employee challenging his termination based on his use of his work computer for personal communication. The European Court of Human Rights (ECHR) held by 6 votes to 1 that although Mr Bǎrbulescu’s employer reading his personal Yahoo Messenger messages was an interference with his right to respect for private life and correspondence within the meaning of Article 8 of the European Convention on Human Rights, the right was not violated as the interference was limited in scope and proportionate.

Facts

Mr Bǎrbulescu, who was employed as an engineer in Romania at the time, was asked by his employer to set up a Yahoo Messenger account on his computer to communicate with clients. Sometime afterwards he was informed that his messages were being monitored, and that this showed he was using the service for personal communications contrary to the employer’s internal policy. Mr Bǎrbulescu denied the allegations, but was presented with a 45 page transcript of personal messages he had sent. The messages included communications with his fiancé and his brother about personal matters. The employer had a strict policy against the use of work equipment for personal reasons. In light of the messages sent above, Mr Bǎrbulescu’s employment was terminated on the grounds of breach of policy.

Decision at the Romanian County Court

Mr Bǎrbulescu challenged the termination in the Romanian County Court, arguing that his right to privacy under Article 8 of the European Convention on Human Rights (as empowered by the Romanian Constitution) prevented access to his personal messages and thus his termination was void for being based on a breach of his human rights. The Court dismissed his challenge, citing the employer’s compliance with Romania’s domestic Labour Code and the fact that Mr Bǎrbulescu had been clearly informed of the employer’s regulations with regards to personal communications on work equipment. A subsequent appeal to the Bucharest Court of Appeal was also dismissed.

Appeal to the ECHR

An appeal was mounted to the ECHR, where again Mr Bǎrbulescu argued against his termination on the basis of Article 8, but also further that the lower courts should not have allowed transcripts of his communications to be adduced in court and considered as evidence.

The ECHR found 6:1 that his right to private life and communication had been impinged upon, but that on the facts, the breach of this right was reasonable and proportionate to the circumstances – the employer’s actions were valid as it accessed the messenger app under the reasonable assumption that the information contained within would be purely professional. In coming to this conclusion, the EHCR found the following factors important:

  • the messaging app was installed at the request of the employer for the purpose of communication with clients;
  • there was a strict and well disseminated policy restricting work phones to work use;
  • people had previously been dismissed for using work property for personal purposes;
  • the messages were sent during work hours; and
  • access to the content of his communications only occurred upon Mr Bǎrbulescu denying that their content was personal.

Given the specific facts of the case, it should not be seen to pave the way for wholesale monitoring of private correspondence in the workplace. The Court also held that the Romanian County Court’s consideration of the messages as evidence was not inappropriate as no weight was attached to their content per se beyond them being unrelated to work.

Australian context

In the Australian context monitoring an employee’s phone may be restricted in several ways. It may constitute ‘interception’ and be prohibited under the Telecommunications (Interception and Access) Act 1979 (Cth). It is also restricted by the Privacy Act 1988 (Cth) if adequate notice to the staff is not given. We do not, however, have an equivalent to an article 8 right to privacy.

The full text of the decision can be found here.

Alexander Di Stefano is a Seasonal Clerk at King & Wood Mallesons.

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