The
European Court of Human Rights, Fourh Section, held in its Judgment of 12 January
2016, in the case of Bărbulescu v. România (application no. 61496/08), that that there has been no violation of Article 8
of the Convention.
The
applicant was employed for several years 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 July 2007, the
employer informed the applicant that his Yahoo Messenger communications had
been monitored from 5 to 13 July 2007 and that the records showed that he had
used the Internet for personal purposes (messages exchanged with his fiancée and
his brother),
contrary to internal regulations.
On
1 August 2007 the employer terminated the applicant’s employment contract for
breach of the company’s internal regulations which stated that it is forbidden
to use computers, photocopiers, telephones, telex and fax machines for personal
purposes. The Romanian courts rejected the applicant’s complaint.
The European
Court reiterated that although the purpose of Article 8 is essentially to
protect an individual against arbitrary interference by the public authorities,
it does not merely compel the State to abstain from such interference: in
addition to this primarily negative undertaking, there may be positive
obligations inherent in an effective respect for private life. These
obligations may involve the adoption of measures designed to secure respect for
private life even in the sphere of the relations of individuals between
themselves (see Von Hannover v. Germany
(no. 2) [GC], nos. 40660/08 and 60641/08, § 57, ECHR 2012, and Benediksdóttir v. Iceland (dec.), no.
38079/06, 16 June 2009). The boundary between the State’s positive and negative
obligations under Article 8 does not lend itself to precise definition. In both
contexts regard must be had to the fair balance that has to be struck between
the competing interests – which may include competing private and public
interests or Convention rights (see Evans
v. the United Kingdom [GC], no. 6339/05, §§ 75 and 77, ECHR 2007‑I) – and in both
contexts the State enjoys a certain margin of appreciation (see Von Hannover, cited above; and Jeunesse
v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014).
In the
instant case, the Court found that the applicant’s complaint must be examined
from the standpoint of the State’s positive obligations since he was employed
by a private company, which could not by its actions engage State
responsibility under the Convention. The Court’s findings in the case of Oleksandr Volkov v. Ukraine (no.
21722/11, ECHR 2013), which concerned the dismissal of a judge, are therefore
not applicable in the present case, as suggested by the applicant.
Therefore,
the Court had to examine whether the State, in the context of its positive
obligations under Article 8, struck a fair balance between the applicant’s
right to respect for his private life and correspondence and his employer’s
interests.
In this
regard, the Court refered to its findings as to the scope of the complaint
which is limited to the monitoring of the applicant’s communications within the
framework of disciplinary proceedings. The Court noted that both the County Court and
the Court of Appeal attached particular importance to the fact that the
employer had accessed the applicant’s Yahoo Messenger account in the belief
that it had contained professional messages, since the latter had initially
claimed that he had used it in order to advise clients. It follows that the
employer acted within its disciplinary powers since, as the domestic courts
found, it had accessed the Yahoo Messenger account on the assumption that the
information in question had been related to professional activities and that
such access had therefore been legitimate.
As to
the use of the transcript of the applicant’s communications on Yahoo Messenger
as evidence before the domestic courts, the Court noted the domestic courts
relied on the transcript only to the extent that it proved the applicant’s
disciplinary breach, namely that he had used the company’s computer for personal
purposes during working hours. Therefore, the Court took the view that the
content of the communications was not a decisive element in the domestic
courts’ findings.
While
it is true that it had not been claimed that the applicant had caused actual damage
to his employer (compare and contrast Pay v. United Kingdom, (dec.), no.
32792/05, 16 September 2008 where the applicant was involved outside work in
activities that were not compatible with his professional duties, and Köpke v. Germany, (dec.), no. 420/07, 5
October 2010, where the applicant had caused material losses to her employer),
the Court finds that it is not unreasonable for an employer to want to verify
that the employees are completing their professional tasks during working
hours.
In addition,
the Court observed that it appears that the communications on his Yahoo
Messenger account were examined, but not the other data and documents that were
stored on his computer. It therefore finds that the employer’s monitoring was
limited in scope and proportionate (compare and contrast Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 59
and 63, ECHR 2007‑IV, and Yuditskaya and Others v. Russia, no. 5678/06, § 30, 12 February
2015).
Furthermore,
the Court finds that the applicant has not convincingly explained why he had
used the Yahoo messenger account for personal purposes.
Having
regard to the foregoing, the Court concluded in the present case that there is
nothing to indicate that the domestic authorities failed to strike a fair
balance, within their margin of appreciation, between the applicant’s right to
respect for his private life under Article 8 and his employer’s interests.
