Information Note on the Court’s case-law 192

January 2016

Bărbulescu v. Romania - 61496/08

Judgment 12.1.2016 [Section IV]

Article 8

Positive obligations

Article 8-1

Respect for correspondence

Respect for private life

Monitoring of an employee’s use of the Internet at his place of work and use of data collected to justify his dismissal: no violation

[This case was referred to the Grand Chamber on 6 June 201 6]

Facts – The applicant was dismissed by his employer, a private company, for using the company’s Internet during working hours in breach of internal regulations prohibiting the use of company computers for personal purposes. The employer had, over a peri od of time, monitored the applicant’s communications on a Yahoo Messenger account the applicant had been requested to open for the purpose of responding to clients’ enquiries. The records produced during the domestic proceedings showed that he had exchange d messages of a purely private nature with third parties.

In the Convention proceedings, as before the domestic courts, the applicant complained that the termination of his contract had resulted from a breach of his right to respect for his private life an d correspondence and that the domestic courts had failed to protect that right.

Law – Article 8: Given, in particular, that the content of the applicant’s communications on Yahoo Messenger had been accessed and the transcript of the communications had been used in the proceedings before the labour courts, the Court was satisfied that the applicant’s “private life” and “correspondence” within the meaning of Article 8 § 1 were concerned by the measures. Article 8 § 1 was therefore applicable.

The applicant’s complaint had to be examined from the standpoint of the State’s positive obligation s since he was employed by a private company, which could not by its actions engage State responsibility under the Convention. The Court had to examine whether the State, in the context of its positive obligations, had struck a fair balance between the app licant’s right to respect for his private life and correspondence and his employer’s interests.

The Court noted that the applicant had been able to raise his arguments before the domestic courts, which had duly examined them and found the disciplinary brea ch established as the applicant had used Yahoo Messenger on the company’s computer during working hours in breach of company rules. The domestic courts had attached particular importance to the fact that the employer had accessed the applicant’s Yahoo Mess enger account in the belief that it contained professional messages. They had not attached particular weight to the actual content of the applicant’s communications, but had relied on the transcript only to the extent that it proved the applicant had used the company’s computer for personal purposes during working hours. There was no mention in their decisions of particular circumstances the applicant had communicated or the identity of the parties with whom he had communicated. The content of the communica tions was thus not a decisive element in the domestic courts’ findings.

The Court further observed that although it had not been claimed that the applicant had caused actual damage to his employer, it was not unreasonable for an employer to want to verify that employees were completing their professional tasks during working hours. The employer’s monitoring had been limited in scope and proportionate as, apart from the communications on the Yahoo Messenger account, no data and documents stored on the applic ant’s computer were examined. Lastly, the applicant had not convincingly explained why he had used the account for personal purposes.

In sum, there was nothing to indicate that the domestic authorities had failed to strike a fair balance, within their marg in of appreciation, between the applicant’s right to respect for his private life under Article 8 and his employer’s interests.

Conclusion : no violation (six votes to one).

(See also Halford v. the United Kingdom [GC], 20605/92 , 25 June 1997; and Copland v. the United Kingdom , 62617/00, 3 April 2007, Information Note 96 )

© Council of Europe/European Court of H uman Rights This summary by the Registry does not bind the Court.

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