Strasbourg Observers

Bărbulescu v Romania and workplace privacy: is the

Grand Chamber’s judgment a reason to celebrate?

October 19, 2017October 17, 2017 Guest Blogger  Bărbulescu v. Romania, Right to Private
Life
By Argyro Cha inikolaou, (Doctoral Student), Law & Technology, Faculty of Law, Ghent University

The recent judgment of the Grand Chamber of the ECtHR in the case of Bărbulescu v Romania
(h p://hudoc.echr.coe.int/eng?i=001-177082) found that the monitoring of an employee’s email account
resulted in the violation of his right to respect for private life and correspondence within the meaning of
Article 8 of the ECHR. By overturning last year’s judgment of the Fourth Section
(h p://hudoc.echr.coe.int/eng?i=001-159906), the ECtHR gave relief to many who dreaded that the la er
judgment had waived privacy in the workplace. Whether we can afford to be complacent, though,
depends upon the grounds on which the violation was reasoned.

The facts

The applicant, Mr Bărbulescu, was employed by a Romanian private company as a sales engineer and
was asked to open a Yahoo Messenger account for professional purposes. On two occasions the
applicant was notified by his employer that his communications would be monitored; however, the
extent of the monitoring was not defined. Mr Bărbulescu was fired after having reportedly made use of
the Yahoo Messenger account for personal reasons, despite the relevant strict prohibition. More
precisely, he was informed that his communications had been monitored and that conduct contrary to
internal regulations had been recorded. Although Mr Bărbulescu denied having used the account for
non-professional communication, he was presented with a transcript of his communications which
refuted his denial. Subsequently, the employment contract of Mr Bărbulescu was terminated, leading
him to challenge his employer’s decision before the Bucharest County Court and subsequently the
Bucharest Court of Appeal. After the dismissal of his appeal, Mr Bărbulescu lodged an application
against Romania arguing that ‘his employer’s decision to terminate his contract had been based on a
breach of his right to respect for private life and correspondence and that the domestic courts had failed
to protect his right’.

The Chamber’s judgment

On 12 January 2016 the Fourth Chamber delivered a judgement with regard to Mr Bărbulescu’s case and
by six votes to one found that there was no violation of Article 8. (Relevant discussion on the judgment
as well as on the partly dissenting opinion of judge Pinto de Albuquerque could be found in the blog
post ‘Case Law, Strasbourg: Barbulescu v Romania, Surveillance of Internet Usage in the Workplace –
Kate Richmond’ (h ps://inforrm.org/2016/01/17/case-law-strasbourg-Bărbulescu-v-romania-surveillance-
of-internet-usage-in-the-workplace-kate-richmond/)). As described in a previous post
(h ps://strasbourgobservers.com/2016/12/20/resuscitating-workplace-privacy-a-brief-account-of-the-
grand-chamber-hearing-in-barbulescu-v-romania/), the case was referred to the Grand Chamber on 6
June 2017.

The Grand Chamber’s judgment

Compared to the Chamber’s judgment, the Grand Chamber carried out a more extensive overview of
relevant international legislation. More precisely, the UN Guidelines for the regulation of computerized
personal data files and the ILO Code of Practice on the Protection of Workers’ Personal Data were
additionally referred to. As expected, the Court also made a reference to the General Data Protection
Regulation, among others, to Article 88 thereof. According to the wording of the article, which refers to
the processing in the context of employment,

Member States may, by law or by collective agreements, provide for more specific rules to ensure protection of
the rights and freedoms in respect of the processing of employees’ personal data in the employment context [..].
Those rules shall include suitable and specific measures to safeguard the data subject’s human dignity,
legitimate interests and fundamental rights, with particular regard to the transparency of processing, [..] and
monitoring systems of the workplace.

Moving on to its assessment, the Court reiterated the broad understanding of the ‘right to private life’
under Article 8 of the Convention and referred to previous case law which includes professional
activities and communication through email in the notion of private life (see Halford v. the United
Kingdom (h ps://hudoc.echr.coe.int/eng#{"itemid":["002-8996"]}), Copland v. the United Kingdom
(h ps://hudoc.echr.coe.int/eng#{"itemid":["001-79996"]}), Niemie v Germany (h ps://hudoc.echr.coe.int/eng#
{"itemid":["001-57887"]})). The Grand Chamber further acknowledged the need to assess whether the
applicant was left with a reasonable expectation of privacy after having prior knowledge of the
company’s internal regulations.

With regard to the applicability of Article 8, the Grand Chamber echoed the Chamber judgment by
reaffirming that the case concerned a positive obligation of the State and the obligation to strike a fair
balance between competing interests. In fact, the ECtHR underlined that “contracting Parties must be
granted a wide margin of appreciation in assessing the need to establish a legal framework governing the conditions
in which an employer may regulate electronic or other communications of a non-professional nature by its
employees in the workplace”.

However, the Court indicated that this discretion cannot be unlimited; States should make sure that they
respect the principle of proportionality along with procedural guarantees against arbitrariness. The Court
went on to define general principles applicable to the assessment of the State’s positive obligation to
ensure respect for private life and correspondence in an employment context. The adoption of adequate
and sufficient safeguards against abuse should take into account a number of factors set out in the
judgment, namely, i) whether the employee has been notified of the possibility that the employer might take
measures to monitor correspondence and the implementation of such measures, ii) the extent of the monitoring and
the degree of intrusion into the employee’s privacy (including a distinction between the monitoring of the
flow or the content of the communications), iii) whether the employer has provided legitimate reasons to justify
monitoring of the communications and accessing of their actual content, iv) whether it would have been possible to
establish a monitoring system based on less intrusive measures, v) the consequences of the monitoring for the
employee who is subjected to it and vi) whether the employee had been provided with adequate safeguards.

Based on the produced evidence, the Court admi ed that the applicant had been informed of the
company’s internal regulations, while the domestic courts had successfully identified the interests at
stake. Next to the identification of the conflicting interests, the Romanian courts had also correctly
indicated the applicable legal principles (principle of necessity, purpose specification, transparency, legitimacy,
proportionality and security). According to the Court, though, Mr Bărbulescu was not informed on the
extent and the nature of the monitoring activities or the possibility of his employer having had access to
the content of the communications.

The Court additionally observed that the domestic courts did not pay a ention to the scope of the
monitoring, the degree of the intrusion nor to whether the monitoring was justified by legitimate reasons. In
fact, the specific aim of such strict monitoring was not even identified, while neither the seriousness of
the consequences for the applicant nor alternative less intrusive measures were examined.

Therefore, the Court held that Article 8 of the Convention was violated with eleven votes to six and that
the domestic courts had failed to strike a fair balance between the competing interests at stake, resulting
in the inadequate protection of the applicant.

Comment

Whether there is a reason to celebrate after the Grand Chamber delivered the judgment of 5 September
2017 depends on the details of the argumentation of the Court. Finding a violation of Article 8 –
especially after reversing last year’s Chamber judgment – is undoubtedly to the benefit of employees.
However, it does not in itself secure adequate protection of any employee within the inherently unequal
employment relationship.

Compared to last year’s judgment, a more consistent reasoning and extensive assessment of facts and
legislation was carried out by the Grand Chamber. Factual elements which were overlooked, despite
their relevance to the balancing, were now given particular a ention. Even though elements, such as the
intimate content of the revealed communications, were once more not looked into, the majority of the
Grand Chamber carefully considered the specific circumstances when balancing the interests at stake.

Se ing out specific factors to assess the proportionality of monitoring activities serve as a useful and
essential tool for delineating acceptable monitoring activities within the workplace. Given the highly
fact-specific nature of the required balancing, sketching out guidelines limits the ambiguity and
promises more adequate safeguards against abuse.

However, despite the indisputable importance of the Court’s findings, states are granted a wide margin
of appreciation with regard to how they regulate monitoring activities undertaken by employers. The
affordance of such a margin of appreciation, though, inherently carries the risk of states providing
insufficient protection to employees.

Moreover, the Court’s reference to the ‘reasonable expectation of privacy’ criterion maintains the
ambiguity and, in a sense, creates a paradox. To base the affordance of the right to a private life on the
existence of a reasonable expectation of privacy indirectly a enuates the afforded protection. The
‘reasonable expectation of privacy’ is assessed on the basis of whether the employee was notified about
the possibility of an upcoming monitoring of communications. Yet linking the affordance of the right to the
employee’s perception of what is permi ed puts him/her in an unfavourable position. On the one hand, the
assessment of how reasonable such an expectation could be or even whether such an expectation exists in
the first place is highly subjective. On the other hand, one could assume that prior knowledge implies
consent to the weakening or even annihilation of the expectation of privacy. This way, the harms of
monitoring, regardless of prior notification, may be essentially underestimated.

Furthermore, although the Court touched upon the issue of the justification of monitoring, it failed to
underline its actual significance. The opportunity to establish the requirement of a detailed Internet
surveillance policy, as proposed by Judge Pinto de Albuquerque in his partly dissenting opinion to the
Chamber judgment, was not grasped.

All in all, the judgment of the Grand Chamber gives rise to mixed feelings. Overturning the decision of
the Chamber is in itself a step closer to safeguarding workplace privacy; yet the legal subordination
which characterizes the employment relationship accentuates the need for stricter guidelines and more
explicit requirements for the monitoring of employees.

2 thoughts on “Bărbulescu v Romania and

workplace privacy: is the Grand Chamber’s
judgment a reason to celebrate?”

1. BĂRBULESCU C. ROMANIA: IL RISPETTO DELLA PRIVACY SUL POSTO DI LAVORO

NELLA GIURISPRUDENZA DELLA CORTE EDU | says:
November 29, 2017 at 8:49 pm
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2. Top ten developments in international law in 2017 | OUPblog says:
January 8, 2018 at 11:32 am
[…] worried about the extensive ways their employers can check up on them, but leaves a number of
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