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Monitoring employee communications

Mr Barbulescu was dismissed after the company presented him with print-outs of messages sent using the Yahoo instant messaging account to his brother and to his fiancée, some of which were of an intimate nature. The company at the time had a policy that prohibited ‘personal use of computers, photocopiers, telephones or fax machines’ but did not make clear whether employees’ communications would be monitored. Mr Barbulescu argued that the company had violated his rights under Article 8 of the European Convention on Human Rights.

Mr Barbulescu’s case was ultimately heard by the Grand Chamber of the European Court of Human Rights (ECtHR) which surprised many observers with its decision that his right to privacy had been violated.

It makes clear that in this case the employer had not done enough to warn Mr Barbulescu that his communications might be monitored.

The judgment is specific to the facts in this case but it makes several points about the need to safeguard employees’ privacy and about what constitutes proportionate behaviour by an employer. Above all it makes it clear that in order to comply with Article 8 of the Convention an employer which intends to monitor employees use of its communication systems must notify employees clearly in advance.

For more information on this case see the judgement of the Grand Chamber ECtHR in Barbulescu v Romania (application no. 61496/08).

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