CASE OF BĂRBULESCU v. ROMANIA
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for correspondence;Respect for private life)
András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1979 and lives in Bucharest. 6. From 1 August 2004 to 6 August 2007, he was employed by a private company (“the employer”) 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. 7. On 13 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, contrary to internal regulations. The applicant replied in writing that he had only used Yahoo Messenger for professional purposes. When presented with a forty-five-page transcript of his communications on Yahoo Messenger, the applicant notified his employer that, by violating his correspondence, they were accountable under the Criminal Code. The fortyfive pages contained transcripts of all the messages that the applicant had exchanged with his fiancée and his brother during the period when his communications had been monitored; they related to personal matters involving the applicant. The transcript also contained five short messages that the applicant had exchanged with his fiancée on 12 July 2007 using a personal Yahoo Messenger account; these messages did not disclose any intimate information. 8. On 1 August 2007 the employer terminated the applicant’s employment contract for breach of the company’s internal regulations which stated, inter alia: “It is strictly forbidden to disturb order and discipline within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.” 9. The applicant challenged his employer’s decision before the Bucharest County Court (“the County Court”). He complained that this decision had been null and void since, by accessing his communications, his employer had violated his right to correspondence protected by the Romanian Constitution and the Criminal Code. 10. In a judgment of 7 December 2007, the County Court dismissed his complaint on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and noted that the applicant had been duly informed of the employer’s regulations that prohibited the use of company resources for personal purposes. The County Court’s judgment reads, in its relevant parts: “The court takes the view that the monitoring of the [applicant]’s Yahoo Messenger communications from the company’s computer ... during working hours – regardless of whether the employer’s actions were or were not illegal (îmbracă sau nu forma ilicitului penal) – cannot affect the validity of the disciplinary proceedings in the instant case... However, since the [applicant] claimed during the disciplinary proceedings that he had not used Yahoo Messenger for personal purposes but rather for advising clients on the products offered by his employer, the court finds that checking the content of the [applicant]’s communications was the only method for the employer to verify the [applicant]’s line of defence. The employer’s right to monitor their employees’ use of the company’s computers in the workplace falls within the broad scope of the right to check the manner in which professional tasks are complete. As long as the employees’ attention ... had been drawn to the fact that, not long before the applicant had received a disciplinary sanction, another colleague had been dismissed for having used the Internet, the telephone and the photocopiers for personal purposes and they had been warned that their activity was under surveillance (see notice no 2316 of 3 July 2007 that the applicant had signed ...) it cannot be held against the employer that he had not proven transparency and that he had not been open with regard to his activities in monitoring the use of the computers by its employees. The Internet in the workplace must remain a tool at the employee’s disposal. It was granted by the employer for professional use and it is indisputable that the employer, by virtue of the right to monitor the employees’ activities, has the prerogative to keep personal use of the Internet monitored. Some of the reasons that make the employer’s checks necessary are the possibilities that through use of the Internet employees could damage the company’s IT systems, or engage in illicit activities in the company’s name, or reveal the company’s commercial secrets.” 11. The applicant appealed against this judgment. He claimed that emails were also protected by Article 8 of the Convention as pertaining to “private life” and “correspondence”. He also complained that the County Court had not allowed him to call witnesses to prove that the employer had not suffered as a result of his actions. 12. In a final decision of 17 June 2008, the Bucharest Court of Appeal (“the Court of Appeal”) dismissed his appeal and upheld the judgment rendered by the County Court. Relying on EU Directive 95/46/EC, the Court of Appeal ruled that the employer’s conduct had been reasonable and that the monitoring of the applicant’s communications had been the only method of establishing if there had been a disciplinary breach. With regard to his procedural rights, the Court of Appeal dismissed the applicant’s arguments, stating that the evidence already before it was sufficient. The Court of Appeal’s decision reads, in its relevant parts: “In view of the fact that the employer has the right and the obligation to ensure the functioning of the company and, to this end, [the right] to check the manner in which its employees complete their professional tasks, and of the fact that [the employer] holds the disciplinary power of which it can legitimately dispose and which [entitled it] to monitor and to transcribe the communications on Yahoo Messenger that the employee denied having had for personal purposes, after having been, together with his other colleagues, warned against using the company’s resources for personal purposes, it cannot be held that the violation of his correspondence (violarea secretului corespondenţei) was not the only manner to achieve this legitimate aim and that the proper balance between the need to protect his private life and the right of the employer to supervise the functioning of its business was not struck.”