Landmark decision of ECtHR on monitoring employees’ communications
In Barbulescu vs. Romania (No. 61496/08), which we reported on in February 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) decided anew whether the Romanian Courts have acted in accordance with the European Convention on Human Rights (ECHR). This time the ECtHR ruled that the Romanian authorities had failed to strike a fair balance between the employer’s interests to take measures in order to ensure the smooth running of the company and the employee’s right to respect for his private life and correspondence.
The ECtHR noted that Article 8 of the ECHR guarantees the right to private life in the broad sense, including the right to lead a private social life. While employers are entitled to set out internal policies that restrict the rights of employees to use the internet for personal purposes, an employer’s rules cannot reduce private social life in the workplace to zero. Recognising the rapid development in the area of monitoring employees’ communications the ECtHR emphasized the importance of the principle of proportionality and procedural guarantees against arbitrariness on the part of employers. The ECtHR specified clear criteria for assessing proportionality of monitoring measures.
In assessing the proportionality of monitoring measures, it is necessary:
- that legitimate reasons justifying the implementation of monitoring of particular nature and scope exists;
- that less intrusive monitoring measures could not effectively achieve the same purpose;
- the employer informs the employees in advance on the possibility of monitoring measures, their nature, scope and degree of intrusion into the employee’s privacy, as well as of the implementation of monitoring measures;
- to ensure the results of monitoring are used to achieve the declared aim of the measure;
- to take into account the consequences of the monitoring for the employee subjected to it and
- to ensure the employees are provided with adequate safeguards.
The judgment of the Grand Chamber of the ECtHR clearly shows that employers are not entitled to generally monitor employees’ communications at work and that monitoring is only permissible in exceptional cases where specifically justified.
