Twitter Logo Youtube Circle Icon LinkedIn Icon

The Legal 500 Hall of Fame Icon The Legal 500 Hall of Fame highlights individuals who have received constant praise by their clients for continued excellence. The Hall of Fame highlights, to clients, the law firm partners who are at the pinnacle of the profession. In Europe, Middle East and Africa, the criteria for entry is to have been recognised by The Legal 500 as one of the elite leading lawyers for seven consecutive years. These partners are highlighted below and throughout the editorial.
Click here for more details

Malta > Legal Developments > Law firm and leading lawyer rankings


Employers Beware before ‘Spying’ on Employees!

September 2017 - Employment. Legal Developments by Mamo TCV Advocates.

More articles by this firm.

Bosses have limited rights to monitor employees’ private correspondence. Landmark judgement delivered by the Grand Chamber of the European Court of Human Rights in relation to monitoring of employees’ communications.

In a case decided last year, in the famous case of Barbulescu v Romania, the ECHR had found that there had been no breach of the employee’s right to privacy when his employer dismissed him over private messages sent at work on the Yahoo messenger system set up by the same employer for work purposes. The employee’s private online exchanges were being monitored and recorded by his employer. Personal use, such as that made by the employee, was in violation of the employer’s internal regulations. The employer had proceeded to terminate his employment with the local Romanian county court, and the Court of Appeal, declaring that his dismissal had been lawful.

The employee instituted proceedings before the ECHR claiming that there had been a violation of his right to private life under Article 8 of the Convention when the domestic courts had failed to revoke the decision of the employer to terminate his contract, which decision was based on a breach of his right to respect for his private life and correspondence.

The Court had held that article 8 was indeed applicable to the present case, having regard to the nature of the applicant’s communications and the fact that a transcript of these communications had been used as evidence in domestic court proceedings. The ECHR went on to determine whether the national authorities had struck a fair balance between this right to private life and correspondence and the interests of the employer. The ECHR considered that the courts had found that the employee had committed a disciplinary offence by using the internet for personal purposes during working hours. They also considered that the employer had accessed the contents of the applicant’s communications after the employee had declared that he had used the account only for work purposes. Moreover, the monitoring activities had been limited only to the use of the Yahoo messenger. It concluded that there had been no violation of article 8 of the Convention.

Mr. Barbulescu’s case was referred to the Grand Chamber of the ECHR after the Grand Chamber accepted his request for fresh consideration. The Grand Chamber delivered its judgment on the 5th September 2017. It noted that the employee had indeed been informed of the ban on personal internet use but it was not clear whether the employee had been informed before the monitoring of his communications that this monitoring was to take place. It also did not appear that the employee was informed in advance about the extent and nature of the monitoring activities taking place or about the possibility that the employer could have access to the actual contents of his communications. The Grand Chamber concluded that the domestic authorities had not offered adequate protection to the applicant’s right to respect for his private life and correspondence which resulted in a violation of article 8 of the Convention.

What is interesting to employers is the specific guidance given by the Court to the national courts in order to determine whether monitoring of employees’ communications was justified. The courts are to consider the following:

  • Notification in advance of the monitoring;
  • Extent of the monitoring and degree of intrusion;
  • The legitimate reason of the employer to implement monitoring;
  • Whether a less intrusive system of monitoring was available;
  • The consequences of the monitoring for the employees and the use made by the employer of the results of the monitoring;
  • Whether the employee had been provided with safeguards which should ensure that the employer cannot access the actual content of the communications unless the employee had been informed in advance.

For more information in relation to Maltese employment law please contact us on

Interview with...

Law firm partners and practice heads explain how their firms are adapting to clients' changing needs

International Law Firm Networks

International comparative guides

Giving the in-house community greater insight to the law and regulations in different jurisdictions.

Select Practice Area

GC Powerlist -

International Law Firm Networks