ECHR judgment review: Is “Big Brother lurking over the shoulders of their employees”?

The European Court of Human Rights (the “ECHR”) have ruled that an employer had the right to monitor an employee’s Yahoo messenger account which had been set up for professional use but had been used for personal purposes during working hours.


The case of Bărbulescu v Romania concerns the surveillance of internet usage and messaging in the workplace. Mr Bărbulescu, a Romanian national, was employed by a Romanian private company as an engineer. At his employer’s request he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.

On 13 July 2007 the employer informed Mr Bărbulescu that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and it showed that he had used the Internet for personal purposes during working hours, contrary to internal regulations. The employer presented  him with a 45 page transcript of his messages, including those sent to his fiancée and brother.

Subsequently on 1 August 2007 Mr Bărbulescu’s employment was terminated for breach of the company’s internal regulations.

Mr Bărbulescu challenged his employer’s decision in court,  but after failing to win his case and exhausting the Romanian domestic courts, he appealed to the ECHR. The appeal was made on the basis that his employer’s decision to terminate his employment had been based on a breach of his right to respect for his private life and correspondence and that the domestic courts had failed to protect his right, relying on Article 8 of the European Convention on Human Rights.

The ECHR found that the employer “had acted in the context of the disciplinary powers since the employer had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities” and “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.”

The Court concluded that there was nothing to indicate that the domestic authorities failed to strike a fair balance between Mr Bărbulescu’s Article 8 right  and his employer’s interests, and therefore on the facts of this case there had been no violation of Article 8.

However, it is also worth mentioning one judge’s partly dissenting opinion. He felt it was fundamental for work places to implement a comprehensive internet usage policy, which employees should be aware of and consent to. The judge said that “without such a policy, internet surveillance in the workplace runs the risk of being abused by employers acting as a distrustful Big Brother lurking over the shoulders of their employees.”

What should employers and employees take from this case?

This case centred on striking a balance between an employee’s right to respect for his private life and an employer’s rights. Both the ECHR decision and the judge’s partly dissenting opinion were significant and useful in terms of understanding the current European position of internet usage in the work place for both employers and employees alike.

Modern technology has blurred the line between work life and private life whether this is internet messaging or social media so implementing a explicitly clear internet usage (and social media) policy would be favourable to both employers and employees.