Warn Before You Snoop, Rights Court Tells EU Bosses

(CN) – The European Court of Human Rights on Tuesday blasted Romania’s judiciary for its failure to protect the rights of a man who’d been fired for using the internet during work – a fact only discovered when the company monitored his email messages.

Bogdan Miahi Barbulescu sued after the private company he worked for fired him on grounds he’d used the internet for personal purposes while at work. Barbulescu initially denied the accusations, at which point the company produced 45 pages of emails Barbulescu sent to his brother and fiancée over a one-week period, including messages of “an intimate nature,” according to the Strasbourg-based human rights court.

In his lawsuit, Barbulescu claimed the employer violated his civil rights and Romania’s criminal law by monitoring his email. Both a trial court and an appeals court disagreed, finding Barbulescu and other employees had been warned about using the internet for personal reasons while at work previously, when the company fired another employee for doing so. The courts also found EU law allows employers to monitor workers’ emails when it’s the only option companies have to make sure employees are complying with regulations on internet use at work.

Barbulescu lodged a complaint with the European Court of Human Rights, and a panel held in 2016 – nine years after Barbulescu was fired – that the Romanian courts had struck a fair balance between Barbulescu’s rights to privacy and the company’s interests in keeping its employees working. Barbulescu asked for an en banc rehearing by the human rights court’s grand chamber, which reversed course on Tuesday and found in Barbulescu’s favor.

Specifically, the chamber found the Romanian courts had failed to determine whether the company gave its employees adequate warning that their emails may be monitored and how.

“The county court had simply observed that employees’ attention had been drawn to the fact that, shortly before Barbulescu’s disciplinary sanction, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes,” the Strasbourg-based court said in a statement. “The court of appeal found that he had been warned that he should not use company resources for personal purposes.

“The [European Court of Human Rights] considered following international and European standards, that to qualify as prior notice, the warning from an employer had to be given before the monitoring was initiated, especially where it entailed accessing the contents of employees’ communications,” the human rights court continued. “The court concluded, from the material in the case file, that Barbulescu had not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual content of his messages.”

Furthermore, the human rights court said the Romanian courts dropped the ball by not examining the scope of the company’s monitoring and the degree to which it invaded Barbulescu’s privacy – even though the company had recorded all emails sent and received by Barbulescu in real time and printed them out in full.

Finally, the human rights court faulted the Romanian courts for not determining if the company had legitimate reasons to monitor Barbulescu’s emails and whether less intrusive means could have been used.

The human rights court awarded Barbulescu just over $1,600 in damages, to be paid by the Romanian government.

In a dissent, seven of the 17 judges of the chamber said the Romanian courts had done an adequate examination of the balance between Barbulescu’s rights and the company’s interests. They noted Barbulescu acknowledged before the human rights court that he knew using internet and email for personal purposes during work was prohibited, and that he wouldn’t have done so if he’d known the company was watching.

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