Privacy and the Law in Romania

Romanian lawyer, solicitor and mediator Mihai Russu (Photo: Russu)

There are two main explanations for the silence of employees who know they have been monitored by their bosses:

Firstly, employees who have been monitored and were fired or forced to resign as a result – feel somewhat guilty. They wrote something nasty on their personal email or they visited adult sites during working hours or, worst case, they tried to steal trade secrets from the company, and were caught out.

Secondly, they don’t appear to know that monitoring private emails is unlawful.

Employers are reluctant to be caught out too, so they aren’t keen to speak about monitoring at work at all.

Under Romanian law, which incorporates the European Directive (Directive 95/46/EC), every employer who wants to monitor their workers must inform both the employees and the National Authority for Personal Data Processing Supervision (ANSPDCP).

However, this does not happen very often in practice. Monitoring is discovered only following of an incident with an employee.

According to ANSPDCP, during 2010 just 70 companies notified the authority that they intended to process personal data, some saying they would be monitoring their staff by video. This low figure, despite statistics from some software companies who sell employers the equipment to monitor staff that indicates 40 per cent of large companies in Romania monitor their staff.

And the market, according to the same sources, is increasing every year. The situation seems confused, to say the least, in terms of interpreting the law.

Representatives of ANSPDCP say that monitoring is legal if announced. But that does not mean that by monitoring you can violate privacy in relation to personal correspondence.

"Even if the employee has consented to monitoring, reading another person’s emails (professional or personal) is illegal. Contrary to the Civil Code which criminalises violations of mail", says Adina Săvoiu, spokesman for the ANSPDCP.

Mihai Russu, a Romanian solicitor, mediator and barrister represents two companies that were accused of unlawful monitoring. Unlike many, he believes that data protection law is sufficiently clear in Romania.

If the employee has given consent, the employer is allowed to see any emails the employee writes on the computer. In addition, he believes that "the concept of privacy has no place at work, so it's private, to be kept at home. Before the internet and emails people did not write their personal letters by hand at work, right?”

Romanian law (Law 506/2004) does not, in itself, clearly define what is personal data. It says only that data processing must be made in good faith, the data should be collected for specified, explicit, legitimate and appropriate means and not be excessive in relation to the purpose of its collection.

Given that the situation is ambiguous not only in Romania, a European-level working group has been created to oversee the implementation of the EU Directive by member states - http://ec.europa.eu/justice/policies/privacy/workinggroup/index_en.htm. The working group has issues documents designed to clarify things.

One of these documents covers electronic surveillance at work, and dates back to 2002 - http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2002/wp55_en.pdf. This document highlights the great conflict between privacy and surveillance in the workplace:

“Workers do not abandon their right to privacy and data protection every morning at the doors of the workplace. They do have a legitimate expectation of a certain degree of privacy in the workplace as they develop a significant part of their relationships with other human beings within the workplace.

“However, this right must be balanced with other legitimate rights and interests of the employer, in particular the employer's right to run his business efficiently to a certain extent, and above all, the right to protect himself from the liability or the harm that workers' actions may create.

“These rights and interests constitute legitimate grounds that may justify appropriate measures to limit the worker’s right to privacy. The clearest example of this would be those cases where the employer is victim of a worker's criminal offence”.

So in the end the problem seems to be left to the Court of Justice to decide the point at which an employee’s right to privacy has been violated.

This is usually unpredictable in Romania, as the lawyer Michael Russu says: "A court decision in Romania is like destiny, you cannot ever know what it will be, based solely on law.”

Dollores Benezic is a freelance journalist from Bucharest who is participating in the 2011 Balkan Fellowship for Journalistic Excellence.

She will be writing regular updates on her investigation into workplace surveillance, privacy at work, workers’ rights and employment law in Romania, the Balkans and the European Union.