Monday, March 28, 2016

The supervision of employee's internet communications - Barbulescu V. Romania

The recent ECHR judgement "Barbulescu v. Romania "is a controversial judgement that refers to surveillance of the employees’ communications by the employer, and the notion of privacy in the workplace. This judgement concerns the case of Mr. Barbulescu who created a Yahoo Messenger account at the employer's request in order to meet the demands of his customers. Subsequently, the employee was informed that the employer monitored his conversations on Yahoo Messenger between July 5 and July 13, noting that Mr. Barbulescu used Yahoo messenger for personal purposes, contrary to the internal regulation. Mr. Barbulescu responded in writing denying the accusations, stating that his account was used strictly for professional purposes. The employer then showed him a transcript of 45 pages containing his conversations among which there were also conversations with his brother and his fiancĂ©e. Following this, Mr. Barbulescu accused the employer of violation of correspondence in accordance with the Criminal Code.
The employer has ceased the employment contract of Mr. Barbulescu on the basis of the violation of the internal regulations which, among other things, provide that the use of the company’s computers for personal use is strictly prohibited.
The applicant challenged the decision of the employer in national courts which have ruled that the employer acted pursuant to the dismissal procedure stipulated by the Labor Code, the employer was informed about the ban of using company resources for personal purposes and that monitoring of the employee’ communications in Yahoo Messenger on the company’s computer during working hours, whether legal or not, does not affect the validity of the disciplinary action taken in this situation.
Mr. Barbulescu has addressed in this respect the ECHR, the Court strictly analyzing this case, namely the interception of communications in open disciplinary proceedings in accordance with the Labor Code and not the preventive or continuous monitoring of employees.
Although the Court held that there is a right to privacy in the workplace, and Yahoo Messenger communications represent „private life” and „correspondence” within the meaning of the concept of art. 8 par. 1 of the Convention, the right to privacy must be balanced with the legitimate interest of the employer, which in this case presented a legitimate reason for it was believed, according to Mr. Barbulescu’s submissions, that the account is used strictly for business purposes. Moreover, the employee couldn’t argue the use of the account for personal and the access of the communications has been made during the disciplinary procedure stipulated by the Labor law. The Court also considers that the measure taken by the employer to oversee Yahoo Messenger communications on the employer was limited in scope and proportion as it was limited only to these conversations and not other data or documents from the computer. Moreover, the employee was informed about the ban to use computers, and not only, for personal purposes.
Finally, the Court finds that there was no violation of Article 8 of the Convention.
Judge Pinto de Albuquerque had a dissenting opinion, saying that regarding private conversations on the Internet, the obligation to promote freedom of expression is connected with the obligation to protect the right to respect private life and that a general prohibition on the personal use of the Internet by employees is inadmissible. The judge states that there was no clear policy regarding the use of the Internet, that the messages were personal in nature and yet they were copied, distributed and reviewed along with other co-workers and the dismissal was a disproportionate measure.
However, the Court does not state in any way the employer's right to unlimitedly monitor employee activity, and the jurisprudence of the ECHR constantly holds the exitance of the right to private life in the workplace.

Don’t hesitate to contact one of the lawyers within the Darie, Manea & associates law firm for more information regarding the notion of private life at the workplace. Our lawyers are dedicated to offering their customers complete and accurate information, guaranteed through a vast experience in a variety of law fields.

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