Test Barbulescu – Is it possible the access to the employees’ communications?

Is it possible to access employee communications? The Barbulescu test clarifies it.

Computers, cell phones and tablets are basic tools in many workplaces, but their use is not unlimited. Employers can establish controls over the use of these devices, and in particular, over communications with them.

The Judgment of the European Court of Human Rights (ECHR) of 5/09/2017, “The Barbulescu Case” is applicable to this situation. In fact, it is about two sentences, the mentioned one and the STEDH 12.01.2016, known as “Barbulescu 1” and “Barbulescu 2”.

This sentence establishes limits on the employer’s ability to control the employee’s communications using computerized work tools. And it does so on the right to privacy in Article 8 of the European Charter of Human Rights:

Article 8 – Right to respect for private and family life

1. 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
   2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In this text, we will analyze in detail the limits established by the ECtHR on the basis of Article 8 ECHR.

What is the scenario of the Barbulescu case?

The plaintiff, Mr. Barbulescu, created, at the company’s request, a “Yahoo Messenger” account to answer clients’ questions.  Mr. Barbulescu was already the holder of another personal account of this type.

The company forbade the personal use of computer equipment, a policy that was previously known by Mr. Barbulescu. Mr. Barbulescu signed the regulation in question on December 20, 2006.

Likewise, he knew that the company would proceed to verify, control, and even sanction the use of internet and computer equipment. He was informed on July 3 and 13, 2007.

Between July 5 and 13, 2007, the company accessed the plaintiff’s Yahoo Messenger communications. And called Mr. Barbulescu to explain why he had made personal use of the company’s equipment.

But at that time, Mr. Barbulescu was not informed that the content of his communications had been accessed. Mr. Barbulescu replied that he only used the business tools for professional purposes.

In contrast, most of the messages exchanged by him were with his girlfriend and brother. For this reason, he was fired on August 1, 2007.

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Barbulescu’s Sentence 1

The Barbulescu 1 ruling accepts the control exercised by the employer of the communications made by his workers.

And accepts it, because there is a previous express prohibition, of use of the computer tools, with personal purposes. For this reason, it does not consider Article 8 ECHR to have been violated even if no warning was given about access to the content.

And in this sense, it was confirmed by the ECtHR, which had been the doctrine of our Supreme and Constitutional Courts.

Barbulescu’s conclusions 2

This second sentence is the consequence of a request for remission by the plaintiff to the Grand Chamber of the ECHR (Therefore, this second decision is final).

As a consequence of this, the Judgment of 5/9/2007, “Barbulescu 2”, grants Mr. Barbulescu’s requests. And it establishes limitations to the employer, which will have to be taken into account, by the companies of the rest of the Union.

According to this second sentence, the restrictive rules of the company, did not clarify, if there was an expectation of privacy.

It adds that the instructions of a company cannot override the exercise of social privacy in the workplace. And although they can be limited, the STEDH points out that respecting the privacy and confidentiality of communications is still necessary. And that in Barbulescu, , the private content of the chat “Yahoo” of the worker was also invaded.

In this sense, paragraph 120 of the Judgment, lists 6 factors to be taken into account regarding “Test Barbulescu”:

1) Has the employee been informed of the possibility of the employer taking steps to monitor his correspondence and other communications? Has the employee been informed of the consequences of applying such measures?

The Court considers that according to the measures to be taken in accordance with the requirements of Article 8 of the Convention:

• The warning should be clear as to the nature of the supervision
• The establishment of the measure must be reported before it is implemented.

2) What was the extent of the employer’s supervision and the degree of intrusion into the employee’s privacy?

Taking into account, if the supervision of communications has been carried out:

• On all or only on part of the communications.
• If monitoring has been limited or not, in time.
• The number of people who have had access to the results of such monitoring.

3) Had the employer presented legitimate arguments to justify surveillance of communications and access to their content?

Surveillance of the content of communications is by its nature, a very invasive method of privacy, so it requires well-founded justifications.

4) Could a surveillance system based on measures less intrusive than direct access to communications from the employee work?

5) What were the consequences of the supervision for the affected employee? Were they proportional to the invasion that such supervision entailsto the exercise of the protected freedom? Did the results serve the stated objective of the measure?

6) Was the employee offered adequate guarantees, taking into account that the intervention measures were intrusive?

These are the criteria analyzed by Barbulescu 2, concluding that they were not duly analyzed by the Romanian courts of origin. Neither in Barbulescu 1.

The criteria analyzed by Barbulescu 2 are not easy to apply in practice, but they must be taken into account. Above all, preserving the privacy of the worker’s private media.

Barbulescu 2 is so important that, even if not directly applicable from labor law to criminal law, it inspires the latter.

As an example, we mention the recent sentence 489/2018 of the Criminal Chamber of the Supreme Court, dated October 23. This judgment annuls a sentence imposed by the Provincial Court of Biscay.

The Biscay’s Sentence, condemned a manager, for misappropriation. It considered that it was proven that the aforementioned manager had carried out a series of operations for his own profit, or for the profit of companies related to him.

The STS 489/2018 considers the evidence obtained from the personal computer of the convicted person by the Biscay’s case to be null and void. And as such, it is not suitable for conviction. And it expressly points out the Barbulescu content in its FD 9º:

(…) NINTH

A recent and extremely relevant event in the jurisprudence on this matter is the STEDH of September 5, 2017 (ECtHR 2017, 61) (Grand Chamber): (…) It cannot be said that the Barbulescu II ruling is totally different from the criteria that have been crystallized in our jurisprudence, briefly outlined. But it contributes and concretes having established with diaphanous clarity parameters of inexcusable respect pushing to new modulations and nuances that have already appeared in the labor jurisprudence (…).

Using the classic technique, one speaks of the unavoidable need to weigh the conflicting rights. On the one hand, the interest of the employer in avoiding or discovering unfair or illegal conduct of the worker. It will prevail only if it sticks to certain standards that have come to be known as the Barbulescu test.

The criteria used to weigh the need and usefulness of the measure, the lack of other less invasive routes, the presence of well-founded suspicions, etc. are set out.

Some are configured as premises of inexcusable concurrence. In particular, there is no room for unconscious access to the mass data storage device if the worker has not been warned of this possibility and/or, furthermore, the use of this tool has not been expressly limited to the tasks exclusive to his or her functions within the company (social uses admit to some degree and depending on the case, as has been said, employment for personal purposes, thus creating a fertile ground for the germination of a well-founded expectation of privacy that cannot be laminated or trampled underfoot). (…)

Sentence October 17, 2019

The European Court of Human Rights in a recent judgment of October 17, 2019, modifies in some way the Barbulescu Test. These are its main considerations:

Legitimacy for the evaluation of the process as a whole, but not on the admissibility of the evidence:

1. The ECtHR has no authority to rule on the admissibility of evidence used in a case. It is only entitled to judge whether the proceedings as a whole – including the evidence – were fair.

Video surveillance justified for legitimate reasons:

2. The judges in Spain decided that the installation of CCTV was justified for legitimate reasons. And those reasons are based on the suspicion, invoked by the director of the supermarket of the important losses registered during several months, that thefts had been committed. They also took into account the employer’s legitimate interest in taking action. Their interest was to discover and punish those responsible for the losses, in order to ensure the protection of their assets and the proper functioning of the company.

Assessment of the degree of intrusion and invasion of privacy:

3. The judges in Spain examined the scope of the surveillance. They also analyzed the degree of intrusion into the applicants’ privacy. They concluded that the measure was limited in terms of the areas and personnel under surveillance. This is because the cameras only covered the cash desk area, which was probably where the losses occurred. They also resolved that the duration of the video surveillance had not exceeded what was necessary to confirm the suspicions of theft. In the Court’s opinion, this assessment cannot be considered unreasonable. In fact, the monitoring did not cover the entire store. It only focused on the areas around the checkouts, where thefts were likely to have taken place.

Assessment of the place where the video surveillance was carried out:

4. In addition, the functions of the applicants were developed in a place open to the public and in permanent contact with the clients. In the analysis of the proportionality of a video surveillance measure, it is essential to verify the protection of an employee’s privacy. This expectation is very high in places of a private nature, such as toilets or changing rooms, where greater protection is justified. Also a total ban on video surveillance. It is still high in closed work areas such as offices. It is clearly lower in places that are visible or accessible to colleagues or, as in the present case, to the general public.

Assessment of the temporal scope of the measure:

5. As for the temporal scope of the measure, the truth is that it lasted 10 days. And it ceased as soon as the employees responsible were identified. Therefore, the duration of the follow-up does not seem excessive in itself. Finally, only the director of the supermarket, the legal representative of the company and the union representative examined the recordings obtained through the contested video surveillance before the applicants themselves were informed. In the light of these elements, the Court considers that the intrusion into the applicants’ private lives has not reached a high degree of seriousness.

These five points modify or develop the Barbulescu test and constitute an advance in the development of the limits of video surveillance

If this article has been of interest, we also suggest you to read the following article published on our website: Is the dismissal of a worker on medical leave void?