Dismissal based on e-monitoring is a violation of privacy, according to the ECHR

On 12 January 2016, the European Court of Human Rights (“ECHR”) – composed of 7 judges – decided in the judgment Barbulescu v Romania that an employee’s right to privacy has not been violated if the employee is dismissed as a result of monitoring by the employer of the employee’s e-mails and chat messages sent during working hours
( see newsflash of 15 January 2016 ).

The employee, Mr Barbulescu, contested this judgment and requested that the Grand Chamber of the ECHR – composed of 17 judges – reconsider the case. On 5 September 2017, the Grand Chamber came to a different judgment, namely that the employer’s e-monitoring was in fact in violation with the employee’s privacy.     

The employer in this case asked its employees to create a Yahoo Messenger account at the start of their employment so that they could respond to clients’ enquiries. 

Several weeks prior to Mr Barbulescu’s dismissal, the employer circulated among its employees an information notice stating that an employee had been dismissed because, among other things, she had used the internet for private purposes.

Based on this information notice, the employer considered that it was clear that the internet was not to be used for private purposes. 

Thereafter, Mr Barbulescu’s communications were examined by the employer and found to contain many private messages. The employee was confronted with this and subsequently dismissed for this reason.

Whereas the ECHR first ruled with a reduced panel of judges that in this context e-monitoring was reasonable, the Grand Chamber has now reached a different conclusion.

After all, the employer did not inform the employee of the possibility of e-monitoring beforehand, let alone of its purposes, nature and extent. Moreover, it was not verified whether the employer could not have used other means of control that would have been less intrusive, instead of checking the contents of private correspondence.

The judgment has as a concrete consequence that e-monitoring has to be used carefully and that an employer has to take certain measures before doing so. The employees have to be notified in advance as to why, how and to what extent (solely the flow of the communication or also its content?) their electronic communication can be checked on the job. The right of employees to privacy can be limited, but not completely excluded. Either way, the intervention has to meet the principles of legality, finality and proportionality.

The requirements that the ECHR imposes with this judgment are in Belgium largely accommodated in the existing rules, including cba no. 81 of 26 April 2002.

For more information, see:   EHRM 5 September 2017, no. 61496/08, Barbulescu/Romania .

> Action point 
If you are considering using e-monitoring, more specifically the logging and possibly checking of the usage of electronic means of communication (e.g., e-mail and internet) of your employees, make sure to notify them of this beforehand in, for example, a clear ICT policy which meets the legal requirements. Moreover, verify that the way in which the monitoring is performed in a specific case is as privacy-friendly as possible. Also take the new GDPR requirements into account. For more information on this, go to: www.gdprbelgium.be