The ECtHR ruled on the following case in ²⁰¹⁷¹: A Romanian employer had dismissed its employee because he had also used a messenger account – which was set up to answer customer inquiries – for private conversations with his fiancée and his brother. In doing so, the employee violated internal company guidelines. The employer monitored and recorded the private communications and terminated the employment relationship.

The Romanian courts confirmed the validity of the dismissal. The employer had complied with the provisions of employment law when dismissing the employee. The employee had been properly informed of the internal regulations, namely that company resources may not be used for private purposes.

The employee felt that Article 8 ECHR (right to respect for private and family life) had been violated. At the beginning of 2016, the ECtHR denied a violation of the right to respect for private life and correspondence. The employee then applied for a referral to the Grand Chamber of the ECtHR, arguing that the Romanian courts had failed to protect his right to respect for private and family life.

The Grand Chamber found a violation of Art 8 ECHR. The ECtHR cited the following criteria, among others, which must be taken into account when determining whether the interception of communications was proportionate:

• An employer’s instruction must not completely exclude the employee’s private life at the workplace.
• National courts must protect the fundamental rights of employees by weighing up their interests in the light of the relevant circumstances.

In the judgment in question, the ECtHR criticized the Romanian courts for failing to examine the case,

• whether the employee was informed in advance by his employer about the possibility, type and extent of checks;
• whether there was a legitimate reason for the control measures and whether milder monitoring methods would not have been possible;
• the severity of the interference with Art 8 ECHR and the consideration of the consequences of the surveillance.

CONCLUSION:
As long as the monitoring of an employee’s internet communication is proportionate, it is also permissible in principle. This requires, among other things, that the employee has been informed in advance about the possibility, nature and extent of the monitoring. Consideration must also be given to whether there are milder monitoring methods. In addition, the provisions of the Data Protection Act and the required declarations of consent for such monitoring measures will also have to be observed to a greater extent in future.

_{^{1 ECtHR}, judgment of 05.09.2017 (61496/08, Barbulescu v Romania)}