The recent Bărbulescu case of the European Court of Human Rights and its impact on the control of electronic communications in the workplace.

The case under analysis, “Bărbulescu v. Romania” confronted a former employee of a private Company, with Romania, in the context of a termination due to the personal use of a Yahoo! Instant messaging account created for labor purposes.

In that context, and after the rejections made by the local courts of Romania to the request of reinstatement and compensation, the Grand Chamber had to decide whether the abovementioned state had complied with Section 8 of the European Convention on Human Rights (the “Convention”), whereby “everyone has the right to respect for his private and family life, his home and his correspondence”, a provision that is similar to the one stated in Section 18 of the National Argentine Constitution, which establishes the inviolability of the domicile, correspondence and private papers.

To resolve this issue, where “there is no consensus in Europe”, according to the Grand Chamber´s words, the Grand Chamber took into consideration the comments presented by: (i) The French Government, which stated that the employer may monitor the correspondence and employee´s information to a reasonable extent and subject to certain conditions, emphasizing the need to previously warn the employees of such control or monitoring; and (ii) the European Trade Union Confederation, who also referred to the need for the employee’s consent or, at the very least, a prior notice to the employee.

Additionally, to reach its decision, the Grand Chamber analyzed the following circumstances:

• The existence of an internal policy regarding the use of electronic communications;
• Whether the employee had been informed prior to the monitoring of the control that was going to be made by the employer (which may even include the employer’s access to the content of their communications) and the extent of such control;
• If the internal policy gave the employee a reasonable expectation of privacy;
• What was the degree of intrusion into the employee’s privacy;
• Whether legitimate justifications existed in order to monitor private communications.

In this case, although the employer had a policy prohibiting any type of private communications during working hours, which had been signed by the employee, the terms and conditions included in that policy did not establish the possibility of a monitoring made by the employer or the scope that such control would have.

In this regard, internal policies have the effect that employees cease to have certain expectations of privacy, either on the basis of general law or personal data protection regulations, with respect to the documents and communications they develop using the electronic working tools provided by the employer; of course, within the limitations of reasonableness demanded by the courts.

In accordance with the aforementioned observations, the majority vote of the Grand Chamber established that:

• The regulations related to the inviolability of correspondence and privacy are applicable to the communications in the workplace;
• In the case under analysis there was a violation of Section 8 of the Convention;
• However,  there was no causal link between the abovementioned breach and the pecuniary damage requested by Mr. Bărbulescu, so the claim for  reparation was therefore rejected; and
• The finding of a violation constitutes sufficient satisfaction for any damage that may have been sustained.

By way of conclusion, it is important to highlight that the Grand Chamber does not reject the possibility of controlling or monitoring the employee’s electronic communications by the employer, but rather states that such control or monitoring must comply with certain conditions and limitations (namely that such control is limited in time, that it is performed in relation to the tools provided for the development of the employee’s tasks, when the internet is provided by the employer, among others), and, more importantly, that consent or prior notice to the employees regarding the existence and extent of the control that must be made.

The judgment of the Grand Chamber in the Bărbulescu case emphasizes the need for an appropriate balance or harmony between the employee’s right to privacy and correspondence and the interest and need of the employer to control the performance of labor tasks.

We cannot rule out that the parameters of this case under analysis could be considered by Argentine courts in order to strengthen current criteria regarding the monitoring of electronic communications. The parameters analyzed by the Grand Chamber in the Bărbulescu case are similar to the ones established by Argentine doctrine and case law, and in our view they have the same protective purpose; that is, to allow the monitoring or control of the use of electronic means as long as the privacy of the employee are respected in the exercise of such monitoring.

In this context, local case law requires for the monitoring and control of the use of electronic means the existence of an internal policy, with due notification and consent by the employees prior to the control, and it also considers that regulation concerning the inviolability of personal correspondence is applicable to electronic communications within the labor context. The case under analysis, in addition to such considerations, also emphasizes that said internal policy should inform the employee of the scope of possible controls that could be performed by the employer; thus, as mentioned above, Argentine case law could incorporate the criteria analyzed by the Grand Chamber, since the perspective of the local and international analysis is consistent in interpreting that the monitoring or control of the electronic communications must respect the privacy and dignity of the employee.