In a landmark judgement concerning privacy in the workplace, the grand chamber of the European Court of Human Rights (ECHR) has ruled that companies must give employees prior warning if they are monitoring their electronic communications.

The ruling could have repercussions for how companies can monitor European employees’ communications in the workplace, with the need for checks and balances on any monitoring to ensure there are sufficient safeguards to prevent abuse.

The judgement pertains to a case dating back ten years which was brought by Romanian national, Bogdan Bărbulescu, who in 2007 was fired by his employer for breaching internal regulations over use of company resources for personal purposes.

Specifically, he had used an instant messenger tool to exchange personal messages with his fianceé and brother. Transcripts of the communications were subsequently presented to him by his employer as evidence for terminating his employment for breach of the company’s internal regulations.

The grand chamber has ruled that Bărbulescu’s employer violated his right to respect for one’s “private and family life, his home and his correspondence” — aka Article 8 of the European Convention of Human Rights.

Earlier Romanian courts had rejected his complaint that his employer had violated his right to correspondence — including in January 2016, when a chamber judgement of the ECHR had held by six votes to one that there had been no violation of Article 8. However the grand chamber has held, by 11 votes to six, that Bărbulescu’s right to a private life was violated.

In a press release about the decision, the court noted that while it was questionable whether the complainant could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on Internet use (of which he had been informed), it judged that an employer’s instructions “could not reduce private social life in the workplace to zero”.

“The right to respect for private life and for the privacy of correspondence continued to exist, even if these might be restricted in so far as necessary,” it writes.

The crux of the decision rests on Bărbulescu’s employer having failed to adequately inform him in advance that it might be monitoring his communications. The intrusiveness of the monitoring — with email contents being read — was also weighed by the judges in making this ruling.

“The Court considered, following international and European standards, that to qualify as prior notice, the warning from an employer had to be given before the monitoring was initiated, especially where it entailed accessing the contents of employees’ communications,” it writes. “The Court concluded, from the material in the case file, that Mr Bărbulescu had not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages.”

The grand chamber also ruled that national courts had failed to sufficiently assess the scope and degree of the privacy intrusion (which involved monitoring all the contents of Bărbulescu’s communications); whether less intrusive methods could have been used; whether there had been legitimate reasons to justify the monitoring; and judged that national courts had not considered the seriousness of the consequences of the monitoring — i.e. Bărbulescu’s subsequent dismissal.

In the judgement, the grand chamber specifies several criteria to be used by national authorities when assessing whether monitoring of workplace communications is proportionate and employees are protected against arbitrariness, including —

whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and the implementation of such measures — specifying that the notification should be clear about the nature of the monitoring and be given in advance
the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy; noting that a distinction should be made between monitoring of “the flow of communications and of their content” (i.e. metadata vs full content). And whether all communications or only part of them have been monitored; and whether monitoring was limited in time and the number of people who had access to the results;
whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content — noting the latter is a “distinctly more invasive method, it requires weightier justification”
whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications
the consequences of the monitoring for the employee concerned and the use made by the employer of the results of the monitoring operation
whether the employee has been provided with adequate safeguards, especially when the employer’s monitoring operations are of an intrusive nature. “Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality,” it notes.