Privacy International response to Grand Chamber of the European Court for Human Rights Barbulescu v. Romania judgement

Today the Grand Chamber of the European Court for Human Rights found that monitoring of an employee’s electronic communications was a violation of their right to privacy.

Mr Bărbulescu was dismissed by his employer, a private company, for having used the company’s internet for personal purposes during working hours, in breach of internal regulations.

The Grand Chamber judgement contains some very important findings on the scope of the right to privacy in the workplace.

Firstly, the Court confirmed that individuals have a right to privacy even in the workplace. This is crucial, because it means that there can be no unfettered “right” of an employer to snoop on an employee’s communications at work. Instead such interference with the employee’s privacy must to be assessed to ensure it was necessary and proportional for the achievement of a legitimate aim. And while employer may restrict such rights, insofar that it is necessary, those restrictions cannot reduce private social life in the workplace to zero.

Secondly, the Court noted that in this case the employer failed to give notice in advance of the introduction of the monitoring measures.

Thirdly, the Court set some important guidelines for national authorities tasked to balance the employee’s right to privacy with the employer’s interest to monitor the employees’ activities. National courts need to assess:

• · the scope of the monitoring and the degree of intrusion into someone’s privacy. In this case, the employer had recorded all communications of Mr Bărbulescu during the monitoring period in real time and had printed out the contents the communications;
• · the legitimate aim to justify the employee’s monitoring;
• · the proportionality of the measures, including whether the aim could have been achieved by less intrusive methods.

This judgement by the Grand Chamber reverses a previous judgement by the Court, in January 2016. However, the Grand Chamber judgement today does not give an absolute right to privacy to employees. The right to privacy is not an absolute right: assessing the scope of legitimate interference with privacy, to ensure that violations of privacy remain the exception rather than the rule, and that such violations are based on the principles of legality, necessity, and proportionality, is the job of judges such as those sitting at the ECHR.

This judgement helps to address some of questions related to the scope of the right to privacy in the workplace. When is it necessary to monitor employees’ internet use? Is it reasonable for employers to introduce an automatic monitoring of their internet activities? What about employees using their personal devices for work and personal purposes, which is increasingly the case in many work places?

While these are not new issues, they are issues that need further exploration, as the boundaries of work and private life will become even more vague, particularly with the rise of the so-called gig economy and the exploitation of personal data of individuals working for such companies.

Privacy International Head of Policy and Advocacy Tomaso Falchetta said:

“The Grand Chamber judgement confirms that individuals have a right to privacy in the workplace. While employers may restrict such rights, insofar that it is deemed necessary, those restrictions cannot reduce private social life in the workplace to zero.

As the boundaries of work and private life become even more vague, particularly with the rise of the so-called gig economy and the exploitation of the personal data of individuals working for such companies, this judgement offers some important protections to employee’s right to privacy.”