Last week the Strasbourg ruling in Bărbulescu v Romania grabbed the headlines. The British tabloid press told us that Strasbourg had handed employers new powers to read their employees’ private e-mails etc.. This was a complete misrepresentation of the case, in which, in essence, Strasbourg ruled that, on its particular facts, there had not been a violation of Article 8 by the respondent State, whose legal system had permitted a company to dismiss an employee for breaching the company’s regulations about use of computers at work.
I had intended to blog on this case, with a more detailed analysis of why the tabloid reporting of it, and that of some other media outlets, was inaccurate, if not simply wrong. In fact, however, all I need do is refer to the following excellent accounts, which have now appeared on-line:
Righsinfo – ‘No, Bosses Are Not Free To Spy On Our Emails: Comment On The Barbulescu Case‘ [by Naomi Webber].
Three cheers, too, to UKHumanrightsblog, who have also provided a fuller account of the case, and some of the controversies generated by it, including by reference Judge Pinto de Albuquerque’s partial dissent.
In that dissent, Judge into de Albuquerque was critical of the majority for not going far enough; he argued that the Court should have found a violation of Article 8. Much of his criticism was directed at the Strasbourg Court’s failure, he said, to apply that Article (the right to respect for private life) to require a greater level of protection on the part of the national authorities, who, he maintained, had failed to provide suitable employment law protection/ legal regime for the employee in the circumstances. He concluded:
23. Convention rights and freedoms have a horizontal effect, insofar as they are not only directly binding on public entities in the Contracting Parties to the Convention, but also indirectly binding on private persons or entities, the Contracting State being responsible for preventing and remedying Convention violations by private persons or entities. This is an obligation of result, not merely an obligation of means. The domestic courts did not meet this obligation in the present case when assessing the legality of the employer’s dismissal decision, adopted in the disciplinary proceedings against the employee. Although they could have remedied the violation of the applicant’s right to respect for private life, they opted to confirm that violation. This Court did not provide the necessary relief either. For that reason, I dissent.