Employer Access to Instant Messaging – Barbulescu Revisited by the ECHR
The ECHR has determined that the monitoring of an employee's yahoo messenger account amounted to a breach of privacy rights

The right of employers to access the private messages of their employees was clarified yesterday after the European Court of Human Rights (ECHR) overturned an earlier judgment of the Court on the issue.

In February and August of last year, we published articles on the judgment of the Fourth Section of the ECHR, sitting as a chamber (the "Chamber"), in the case of Barbulescu v Romania which involved the monitoring by a private company of an employee's electronic communications.

The case involved Mr Barbulescu, an engineer, whose employment was terminated after his instant messages were viewed by his employer.

The Chamber ruled in his employer's favour and, as a result, the Chamber's judgment had been heralded as carte blanche for employers to monitor the private messages of employees.

However, yesterday, the Grand Chamber of the ECHR (the "Grand Chamber") reversed the decision of the Chamber, ruling that the monitoring of Mr Barbulescu's messages amounted to a breach of his right to respect for private life and correspondence under Article 8 of the European Convention of Human Rights ("Article 8").

In January 2016, Judge Pinot de Albuquerque, in his dissenting opinion annexed to the Chamber's judgment, expressed that the ECHR had, at that time, overlooked an excellent occasion for the ECHR to develop its case-law in the field of protection of privacy with regard to employees' internet communications. The judgment of the Grand Chamber, therefore, provides a welcome clarification of the extent of the protections afforded to employees in this context.

Background to the Case

Mr Barbulescu was requested by his employer to set up a Yahoo messenger account to contact his employer's clients. Through spyware software, Mr Barbulescu's employer established that he was using the service to exchange messages with his fiancée and brother. His employment was subsequently terminated on the grounds of a breach of the employer's rules prohibiting the use of the employer's resources for personal purposes.

The Chamber's Judgment

Having exhausted the avenues of redress in his home country of Romania, Mr Barbulescu took a case to the ECHR, arguing that the termination of his employment was based on a breach of his privacy rights and that, by not revoking that measure, the Romanian courts had failed to protect such rights.

In its judgment of 12 January 2016, the Chamber held that that the Romanian courts had struck a fair balance between the Mr Barbulescu's Article 8 rights and the business interests of the employer. The Chamber stated that "it was not unreasonable to seek to confirm that employees were completing professional tasks during work hours".

The Grand Chamber's Judgment

In a significant departure from the Chamber's judgment, the Grand Chamber held yesterday that Mr Barbulescu's right to private life and correspondence under Article 8 had been breached. The Grand Chamber's judgment is final.

In finding that Article 8 was applicable to the circumstances of the case, the Grand Chamber held that the right to a private life may include professional activities. It found that, as telephone calls made from or received on a business premises are covered by "private life" and "correspondence", emails sent from the workplace and information derived from the monitoring of a person's internet use enjoy a similar protection.

In assessing whether the national authorities had adequately protected Mr Barbulescu's rights under Article 8, the Grand Chamber considered the following factors:

1. Receipt of Prior Notice

The Grand Chamber found that the national courts omitted to ascertain whether Mr Barbulescu had received prior notice of the extent and nature of the monitoring measures implemented by the employer or of the possibility that the employer may have access to the actual contents of his communications.

The Grand Chamber considered that to establish prior notice, the warning from the employer had to be given before the monitoring began, particularly where it involved accessing the contents of the employee's communications.

2. Extent of Monitoring and Degree of Intrusion

The national courts failed to consider the scope of the monitoring and the degree of intrusion into the Mr Barbulescu's privacy.

3. Legitimate Reason for Monitoring

The Grand Chamber held that the national courts had not carried out a sufficient assessment of whether there had been legitimate reasons to justify the monitoring of Mr Barbulescu's communications. The national courts did not identify a specific aim justifying the monitoring.

The Grand Chamber found theoretical examples of the need for the company to prevent liability in the event of illegal activities online, disclosure of trade secrets or damage to the employer's IT systems did not amount to a legitimate reason where there was no suggestion that Mr Barbulescu posed such a risk.

4. Less Intrusive Methods

It was found that the national courts had not examined whether the aim of the employer could have been achieved by less intrusive methods i.e. without directly accessing the full contents of the employee's communications.

5. Consequences

The Grand Chamber held that the domestic authorities failed to consider the seriousness of the consequences of monitoring and the disciplinary proceedings. 

It also stated that consideration must be given to whether the employee has been provided with adequate safeguards, especially where the monitoring measures of the employer are intrusive. The Grand Chamber stated the safeguards should ensure that an employee is notified before an employer accesses the actual contents of an employee's communications.

The Grand Chamber held that the national authorities failed to strike a fair balance between Mr Barbulescu's right to respect for his private life and the interests of his employer. In doing so, the national authorities had failed to adequately protect Mr Barbulescu's rights which amounted to a breach under Article 8.

Notably, the judgment states that the finding of a violation of Article 8 was "just satisfaction" and did not award damages to Mr Barbulescu.  Dissenting, Judge Karakas disagreed with this aspect of the decision, stating that the violation of Article 8 could not be satisfied by a mere finding that damage was sustained.


Given that Irish courts are guided by the principles laid down in ECHR case-law, this decision will strengthen the privacy rights of employees in Irish workplaces.

The factors laid down by the Grand Chamber provide a useful guide for employers engaged or intending to engage in the monitoring of employees' electronic communications. Employers are advised to review existing policies and approaches to monitoring of employees to ensure they are compliant with best practice.

Contributed by Emma Lavin

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