In a message dated 13/03/2001 17:38:00 GMT Standard Time,
[log in to unmask] writes:
<< Re: right to respect for a private life at home and at work, and
monitoring of email, I think that it is important to note that the right as
given in the Convention is heavily qualified, as follows:
"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."
This is clearly a matter of interpretation. I read this as saying that the
right to privacy is certainly not unqualified, and by extension (in terms of
the current debate) it is perfectly conceivable that there will be situations
when the interception of email (even if it is marked personal) may be quite
justifiable. >>
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The question, in this instance, is not whether e-mails marked "personal" can
ever be intercepted and the content read in order to meet the conditions laid
out in the ECHR Article 8 by the employer acting as a "public authority".
Clearly in this instance the employer is acting as a private body with the
intention of maintaining its personnel and employment policies, not the
morals or economic health of the country or other people. Therefore the
qualification allowing breach of the privacy right is not met.
The question, in my opinion, is whether the UK laws - introduced to prevent
the interception of private communications except where certain conditions
are met - would allow a private e-mail to be intercepted except where
evidence existed as to the possibility of a breach of law, employment
contract or whatever. If the monitoring is of the fishing trip type, or
based on search criteria that could be legitimately contained within a
private e-mail, the interception may well be in breach of the right to
privacy given by the legislation (RIPA, HRA and / or DPA).
The employer will be relying upon the conditions in the Lawful Business
Practice Regulations, rather than the qualifications mentioned in Art 8 of
ECHR, to intercept and read the contents of "private" e-mails.
The sensible employer will inform staff of the limits of using the e-mail
system and will make it perfectly clear that ALL e-mails may be subject to
traffic and content monitoring, interception and disclosure to appropriate
authorities (including for internal disciplinary matters). Therefore they
cannot expect privacy.
In the case of intception of telephone calls, employers are advised to
provide a private means of communication for their employees - such as a
pay-phone in a spare office - how long before the next HR case judge suggests
a similar provision for private e-mails??
Ian Buckland
MD
Keep IT Legal Ltd
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