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Bărbulescu v. Romania (Eur. Ct. H.R.)

Published online by Cambridge University Press:  05 March 2018

Nichole L. Sterling  and
Emily R. Fedeles
Nichole L. Sterling
Affiliation:
Nichole Sterling and Emily Fedeles are associates in the New York City office of BakerHostetler. Nichole was previously a Dean Acheson Legal Stagiaire at the Court of Justice of the European Union. Emily practiced with an American law firm in Geneva, Switzerland, prior to joining BakerHostetler. The views expressed in this article are those of the authors and not necessarily those of BakerHostetler or its clients.
Emily R. Fedeles
Affiliation:
Nichole Sterling and Emily Fedeles are associates in the New York City office of BakerHostetler. Nichole was previously a Dean Acheson Legal Stagiaire at the Court of Justice of the European Union. Emily practiced with an American law firm in Geneva, Switzerland, prior to joining BakerHostetler. The views expressed in this article are those of the authors and not necessarily those of BakerHostetler or its clients.
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Extract

On September 5, 2017, a decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Bărbulescu v. Romania (Bărbulescu) helped define the boundaries regarding employee privacy in the European workplace. The Bărbulescu decision held that a Romanian employee's legally protected right to privacy was violated when his employer monitored personal messages he sent from a company account, reversing a previous decision by the ECHR in this case that had expanded employers' rights to monitor employees.

Type
International Legal Documents
Information
International Legal Materials , Volume 57 , Issue 1 , February 2018 , pp. 80 - 124
Copyright
Copyright © 2018 by The American Society of International Law 

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References

ENDNOTES

1 Bărbulescu v. Romania, App. No. 61496/08, Eur. Ct. H.R. (Grand Chamber, 2017) [hereinafter Grand Chamber Decision], available at http://hudoc.echr.coe.int/eng?i=001-177082.

2 Id., reversing the Court's decision in Bărbulescu v. Romania, App. No. 61496/08, Eur. Ct. H.R. (Fourth Section, 2016) [hereinafter Fourth Section Decision], available at http://hudoc.echr.coe.int/fre-press?i=001-159906.

3 Grand Chamber Decision, supra note 1, ¶ 21.

4 Id. ¶ 17.

5 Id. ¶¶ 21–23.

6 Id. ¶ 25, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Europ. T.S. No. 5, 2013 UNTS 221. In making his argument, Mr. Bărbulescu relied on Copland v. United Kingdom, 2007-I Eur. Ct. H.R. 317, available at http://hudoc.echr.coe.int/eng?i=001-79996.

7 Grand Chamber Decision, supra note 1, ¶ 28.

8 Id.

9 Id. ¶ 29.

10 Id.¶ 30.

11 Id. (citing Council Directive, 95/46, 1995 O.J. (L281) 31 (EC)). While this appeal was pending, Mr. Bărbulescu also filed an unsuccessful criminal complaint against the company alleging breach of secrecy of his correspondence. This complaint was dismissed by the Directorate for Investigating Organised Crime and Terrorism (DIICOT), which found that the company, as the owner of the computer system, could monitor the employee and that such monitoring was foreseeable. Mr. Bărbulescu did not pursue any available appeals of this decision. Grand Chamber Decision, supra note 1, ¶ 31.

12 Fourth Section Decision, supra note 2, ¶¶ 62–63.

13 Id. ¶¶ 36–39; Halford v. United Kingdom, App. No. 20605/92, Eur. Ct. H.R., ¶ 45 (1992), available at http://hudoc.echr.coe.int/eng?i=001-58039; Copland, 2007-I Eur. Ct. H.R. at 329.

14 Id. ¶¶ 60, 62.

15 Press Release, Eur. Ct. H.R., Monitoring of an Employee's Electronic Communications Amounted to a Breach of His Right to Private Life and Correspondence (ECHR 268, Sept. 5, 2017), available at http://hudoc.echr.coe.int/eng-press?i=003-5825428-7419362.

16 See Grand Chamber Decision, supra note 1, ¶¶ 56, 72–73, 86.

17 Copland, 2007-I Eur. Ct. H.R.

18 Halford, App. No. 20605/92, Eur. Ct. H.R.

19 Grand Chamber Decision, supra note 1, ¶¶ 13–14. In any event, Mr. Bărbulescu did not have explicit knowledge that his employer could monitor his communications prior to the commencement of the monitoring. Id. ¶ 78.

20 Id. ¶¶ 15–17. The second policy also referenced an employee who had been fired for her private use of company resources, including the internet, among other reasons. Id. ¶ 15.

21 Fourth Section Decision, supra note 2, Partly Dissenting Opinion of Judge Pinto de Albuquerque, ¶¶ 16–18. Judge Pinto de Albuquerque writes that this case “presented an excellent occasion for the [ECHR] to develop its case-law in the field of protection of privacy with regard to employees' Internet communications,” which concerns “the non-existence of an Internet surveillance policy, duly implemented and enforced by the employer . . . .” Id. ¶ 2.

22 Press Release, Eur. Ct. H.R., Q & A: Grand Chamber Judgment in the Case of Bărbulescu v. Romania (Application No. 61496/08) (Sept. 5, 2017), available at www.echr.coe.int/Documents/Press_Q_A_Barbulescu_ENG.PDF.

23 Libert v. France, Application No. 588/13, Eur. Ct. H.R. (pending).

24 See Factsheet, Eur. Ct. H.R., Personal Data Protection (November 2017), available at http://www.echr.coe.int/Documents/FS_Data_ENG.pdf.