Quick answer
In Bărbulescu v. Romania (Grand Chamber, 5 September 2017, application no. 61496/08), the European Court of Human Rights held — by eleven votes to six — that Romania had violated Article 8 in the case of an employee dismissed after his employer monitored his private electronic communications at work. Reversing the Chamber, the Grand Chamber held that the domestic courts had failed to strike a fair balance between the employee’s right to respect for his private life and correspondence and the employer’s interests, and it set out the safeguards that must govern workplace monitoring.
Background and facts
Mr Bărbulescu, an engineer, had, at his employer’s request, created a Yahoo Messenger account to deal with client enquiries. The employer’s regulations prohibited the use of company resources for personal purposes. The employer monitored the account and recorded his communications in real time over a period, then confronted him with a transcript showing that he had also exchanged personal messages — including with his brother and his fiancée, some concerning his health and sex life. He was dismissed. The Romanian courts upheld the dismissal, holding that the employer had acted within its rights and that the monitoring was the only way to establish the misconduct.
The complaint
The applicant complained under Article 8 that his dismissal was based on a breach of his right to respect for his private life and correspondence, and that the domestic courts had failed to protect that right.
The Court’s reasoning
The Grand Chamber confirmed that Article 8 was applicable: communications from the workplace are covered by the notions of “private life” and “correspondence”, and an employee’s reasonable expectation of privacy is a significant, though not decisive, factor. Because the dispute was between a private employer and an employee, the Court examined whether the State had complied with its positive obligation to ensure that the domestic courts properly protected the applicant’s rights.
It held that, when reviewing workplace monitoring, the national authorities should have regard to a series of factors, in particular: whether the employee had been given prior notice of the possibility and nature of monitoring; the extent of the monitoring and the degree of intrusion into the employee’s privacy (including whether the content of communications, and not just their flow, was accessed); whether the employer put forward legitimate reasons justifying the monitoring and its degree; whether less intrusive methods could have been used; the consequences of the monitoring for the employee; and whether the employee had been provided with adequate safeguards.
Applying that framework, the Court found that the Romanian courts had not determined whether the applicant had received prior notice that his communications might be monitored, nor considered the fact that he had not been informed of the nature or extent of the monitoring or the degree of intrusion into his private life and correspondence. They had failed to establish the specific reasons justifying the monitoring, whether less intrusive measures were available, and whether the communications might have been accessed without his knowledge. The domestic courts had therefore not struck a fair balance, and there had been a violation of Article 8.
The judgment
- by eleven votes to six, a violation of Article 8 of the Convention;
- by sixteen votes to one, that the finding of a violation constituted sufficient just satisfaction for non-pecuniary damage; and
- an award in respect of costs and expenses.
Legacy and subsequent case law
Bărbulescu is the leading Convention authority on privacy in the workplace. Its list of factors — often called the “Bărbulescu safeguards” — now guides employers, data-protection authorities and courts across Europe on when and how communications and other employee activity may lawfully be monitored, and it was applied and developed in cases such as Antović and Mirković v. Montenegro and López Ribalda and Others v. Spain.
What this means for applicants
- Communications at work are protected by Article 8; an employer cannot monitor them without limits.
- Prior notice, proportionality and safeguards are decisive. Monitoring must be justified, proportionate, and accompanied by adequate protections.
- The State must ensure the courts strike a fair balance between employee privacy and the employer’s interests.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did Bărbulescu v. Romania decide?
The Grand Chamber held, by eleven votes to six, that Romania violated Article 8 because its courts failed to strike a fair balance between an employee’s right to private life and correspondence and his employer’s interests when he was dismissed for personal use of a work messaging account.
Can employers monitor employees’ communications?
Only within limits. Monitoring must be justified by legitimate reasons, proportionate, and accompanied by safeguards; employees should generally receive prior notice of the possibility and nature of monitoring.
What are the “Bărbulescu factors”?
They include prior notice of monitoring, the extent and intrusiveness of the monitoring, the legitimate reasons for it, whether less intrusive methods were available, the consequences for the employee, and the adequacy of safeguards.
Did the Grand Chamber agree with the earlier Chamber judgment?
No. The Chamber had found no violation; the Grand Chamber reversed that outcome and found a violation of Article 8.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Biao v. Denmark
- Marckx v. Belgium
- Von Hannover v. Germany
- Osman v. the United Kingdom
- Dudgeon v. the United Kingdom
- Golder v. the United Kingdom
Facing a similar case?
Our lawyers represent individuals before the European Court of Human Rights. Speak to an ECHR lawyer, learn how to apply to the ECHR, or check the admissibility criteria.