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  • ECHR has ruled that employers can read workers’ private messages sent via chat software and webmail accounts during working hours
  • February 9, 2016
  • Law Firm: GANADO Advocates - Valletta Office
  • On the 12th January 2016, in Barbulescu vs Romania (application number 61496/08) the European Court of Human Rights held that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention of Human Rights.

    The case concerned Mr Barbulescu’s dismissal by his employer, a private company, for having used the company’s internet for personal purposes during working hours in breach of internal regulations.

    The court found, in particular that Mr Barbulescu’s private life and correspondence had been engaged. However his employer’s monitoring of his communications had been reasonable in the context of disciplinary proceedings.

    The Applicant a Romanian national was employed by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. In 2007, the applicant was informed that his Yahoo Messenger communications had been monitored and that the records showed that he had used the internet for personal purposes. Mr Barbulescu replies in writing that he had only used the service for professional purposes. He was then presented with transcripts of messages between his brother and his fiancée. On August 1st 2007, the employer terminated the applicants employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

    The applicant challenged his employer’s decision before the courts complaining that the decision to terminate his contract was null and void as his employer had violated his right to correspondence in accessing his communications in breach of the Constitution and Criminal Code. His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Mr Barbulescu has been duly informed of the company’s regulations. The applicant appealed claiming that e-mails were protected by Article 8 (right to respect for private and family life) of the European Convention and that the first-instance court had not allowed him to call witnesses to prove that his employer had not suffered as a result of his actions. In a final decision, the Court of Appeal dismissed his appeal and relying on EU law, held that the employer’s conduct had been reasonable and that the monitoring of Mr Barbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach. Furthermore, the Court of Appeal held that the evidence before the court of first instance had been sufficient.

    The application to the ECHR was lodged on the 15th December 2008. Relying on Article 8 (right to respect for family life, the home and correspondence) the applicant complained that his employer’s decision to terminate his contract was unfair.

    Decision of the Court

    Article 8:

    The court considered that the fact that the employer had accessed Mr Barbulescu’s professional internet account and that the record of communications had been used in the domestic litigation to prove the employer’s case was sufficient to engage the applicant’s ‘private life’ and ‘correspondence’. It, therefore, found that article 8 was applicable.

    Firstly, however, it did not find it unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours and noted that the employer had accessed Mr Barbulescu’s account in belief that it contained client-related communications.

    Secondly, Mr Barbulescu had been able to raise his arguments related to the alleged breach of his private life and correspondence before the domestic courts and there was no mention in the ensuing decisions of the actual content of the communications. Notably, the domestic courts had used the transcript of his communications only to the extent that it proved that he had used the company’s computer for his own private purposes during working hours and the identity of the people with whom he had communicated was not revealed.

    The court therefore concluded that the domestic courts had struck a fair balance between Mr Barbuescu’s right to respect for his private life and correspondence under Article 8 and the interests of his employer. There had therefore been no violation of Article 8 of the European Convention.

    Article 6:

    The Court declared this complaint manifestly ill-founded as Mr Barbulescu’s concerns had been considered by the Court of appeal which found them, in sufficiently reasoned decision, to be irrelevant.

    Going forward, one of the seven judges added that all employers should explain clearly any rules that would allow them to check on their workers online activities. He stated that ‘all employees should be notified personally of the said policy and consent to it explicitly’.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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