Lorna Woods, Professor of Internet Law, University of Essex

Background

The Bărbulescu case examined the permissible extent of employer monitoring of employee communications, including internet usage, particularly when private conversations might be mixed with work-related ones. An employee, dismissed for violating a company policy prohibiting personal use of work equipment, sued his employer in Romania. He lost and appealed under Article 8 of the European Convention on Human Rights (ECHR), which protects privacy rights, arguing that his employer’s monitoring of his communications violated the precedent set by Copland v UK. While the initial court ruled that no violation occurred, contradicting the widespread interpretation of allowing unrestricted monitoring, the Grand Chamber ultimately overturned this decision. This analysis focuses on the Grand Chamber’s judgment and its reasoning.

Judgment

The Grand Chamber asserted Article 8’s broad scope, emphasizing its application to both personal and professional life, including relationships formed in the workplace. It highlighted that work significantly contributes to social identity development through interactions. Additionally, while the concept of “private life” is inherently linked to privacy expectations, “correspondence” does not have this limitation. Although “reasonable expectation of privacy” helps define Article 8’s boundaries, it is not the definitive factor. In this case, despite knowing about the policy, the employee was unaware of the monitoring. Furthermore, some communication content was personal, and the account was password-protected. The court concluded that, regardless of the employer’s policy, workplace social interactions cannot be completely eliminated and privacy rights persist, even if subject to limitations.

Moving on to the question of violation, the court addressed the employer’s positive obligations as a non-state entity. It determined that while the employer’s monitoring didn’t directly infringe upon Article 8, the state’s endorsement of this action through the national courts triggered its positive obligations. A fair balance between individual and societal interests was crucial, with labor law allowing for flexibility, but not unlimited discretion. Safeguards for communication monitoring are essential, including: clear prior notification about monitoring practices, defined scope and intrusiveness (differentiating between communication flow and content), justification for monitoring, exploration of less intrusive methods, consequences for employees, and the existence of adequate safeguards. Domestic remedies should also be available.

The Grand Chamber criticized the national courts for not adequately considering these factors. For instance, the employee was not adequately informed about the extent and nature of the monitoring or the possibility of accessing his message content. The justification for intrusion was also deemed questionable. This led to the conclusion that Article 8 was violated. However, dissenting opinions regarding the national courts’ approach were present.

Comment

The Grand Chamber’s decision, contradicting the initial ruling, clarifies that workplace privacy cannot be entirely disregarded. It offers valuable guidelines for both national courts and employers regarding personal communication policies at work. Applying to all employment relationships, this judgment recognizes the significance of work in daily life, particularly in our “always on” culture where work and personal life often intertwine.

Several points merit further consideration. Firstly, regarding Article 8’s scope, the relationship between “reasonable expectation of privacy” and the distinct elements of “private life,” “family life,” “home,” and “correspondence” remains unclear. By focusing on “reasonable expectation of privacy,” the court’s approach potentially blurs the lines between these elements, limiting the protection for “correspondence.” While acknowledging that “correspondence” doesn’t automatically necessitate privacy expectations, the Grand Chamber still frames the issue around this concept, creating ambiguity regarding whether “correspondence” enjoys protection under Article 8 only when a reasonable expectation of privacy exists.

Secondly, this case highlights the distinction between the court’s approach towards positive and negative obligations. Instead of directly applying the Article 8(2) criteria of legitimate objective, lawfulness, and necessity, positive obligations are assessed through a “fair balance” test, granting states a broader margin of appreciation. This explains the disregard for the Copland ruling, which focused on the lawfulness aspect under the standard Article 8(2) analysis. While acknowledging the need for balance, equating the restriction of individual rights by state actors with a fair balance approach is debatable, potentially undermining the paramount importance of human rights. However, the court incorporated elements from state surveillance case law (like Klass and Zakharov) to guide the assessment of fair balance.

Finally, the Grand Chamber might have accepted the referral to address the Fourth Section’s failure to consider the EU Data Protection Directive, which prohibits collecting personal data without consent or justifiable grounds. Despite this, the judgment lacks meaningful engagement with EU data protection law. While noting the national court’s consideration of the directive, the Grand Chamber didn’t analyze those rules itself, instead focusing on ILO standards and Council of Europe recommendations. Consequently, the judgment doesn’t appear to directly engage with substantive EU data protection rules.

Photo credit: Aird and Berlis LLP