Bărbulescu v. Romania (Application 61496/08)

The case originated in an application against Romania under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Romanian national, Mr. Bogdan Mihai Bărbulescu, on the 15th of December, 2008. At his employer’s request, Mr. Bărbulescu created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. However, on monitoring these communications over a period of time, his employer found that he had been using the service for personal purposes which was contrary to internal regulations. His employment contract was then terminated for breach of the company’s regulations.

Mr. Bărbulescu challenged his employer’s decision before the Bucharest County Court. He complained that by accessing his communications, his employer had violated his right to correspondence protected by the Romanian Constitution and the Criminal Code. His complaint was dismissed on the grounds that his employer had complied with the dismissal proceedings provided for by the Labour Code and Mr. Bărbulescu had been duly informed of the company’s regulations. Mr. Bărbulescu appealed this decision and claimed that e-mails were protected by Article 8 of the European Convention. The Court of Appeal dismissed his appeal and held that the employer’s conduct had been reasonable in the circumstances.

Mr. Bărbulescu then lodged an application with the European Court of Human Rights on the 15th of December, 2008. Relying on Article 8 (right to respect for private and family life, the home and correspondence), Mr. Bărbulescu complained that his employer’s decision to terminate his contract had been based on a breach of his privacy. Furthermore, relying on Article 6, he complained that the proceedings before the domestic courts had been unfair. The Court declared, unanimously, that the complaint concerning Article 8 of the European Convention on Human Rights was admissible and that the remainder of the application was inadmissible.

In looking at the merits of the complaint concerning Article 8, the 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 “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”. Ultimately, 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 whilst also considering the employer’s interests.

The Court stated that the employer had acted within its disciplinary powers as it had accessed Mr. Bărbulescu’s account on the assumption that it contained client-related communications. It was concluded that the State had indeed struck a fair balance between Mr. Bărbulescu’s right to respect for his private life and correspondence under Article 8 and the interests of his employer. The Court held, by six votes to one, that there was no violation of Article 8 of the European Convention.

It would seem that the European Court of Human Rights in the case of Bărbulescu v. Romania, is not overturning its prior case law in the area. It distinguishes Bărbulescu from previous cases such as Halford v. the United Kingdom, Copland v. the United Kingdom and Peev v. Bulgaria, rather than reversing them. The importance of the Bărbulescu judgment is that it provides some clarification regarding cases where monitoring of employees’ communications can be justified, and cases where it cannot be justified.

Wording provided by Kirby Tarrant, O'Gradys, Solicitors, Dublin.