Dear All,
I think we are focusing too much on the DPA angle to these issues.
We need to consider whether there is an acceptable use policy. Does the policy explain that it can or cannot be used for business purposes and if used for purposes that contravene the acceptable use policy, or the law, then it will be subject to investigation and judgement by the organisation?
The first question to ask is "Is this authorised use of the system?" If it is not, then it does not matter if the organisation is the data controller. They have a legal right to manage their system for authorised use. See the Lawful Business Practices Regulations. http://www.thamesvalley.police.uk/policy_-_lawful_business_practice_final.pdf
If someone uses a work email system, even for private use, the use of that system is the responsibility of the organisation.
The data in those emails may be personal data of the sender, the receiver or a third party. However, that is secondary if the transaction is illegal or contravenes the organisation's acceptable use policy.
The organisations, responding to a request to access that system in the belief that the user is acting without authorisation, would be within their rights to consider disclosure to the requestor. They would rely on s.35 (2) or even 29(3).
In this instance, I would see the process working like this.
Complainant contacts Smith and CO. Someone is using your email system to do X [Insert activity (defamation, run a business, blackmail ). The person is X.
Smith and Co. check to see if person X works for them and uses their system.
They do. They then check to see if the use is within the acceptable use policy (this is the Lawful Business Practices Regulations) which they will have told person X (if an employee or user) that they have to follow.
They find either
A) X has used it correctly. (No issue) (Nothing to say except "the uses our procedure or policy so we are not providing anything thing as it is not as you allege.)
B) They have used it incorrectly. *At this point the organisation becomes the data controller* and thus must act within the DPA according to its responsibilities.
I would suggest we need to start from a different basis, other than the DPA or we are in danger of putting the car before the horse where the user tells the system provider what they cannot or cannot do. The reality is that the system provider, in particular in the workplace, is responsible for what goes out of the system. It is that responsibility that can make them a data controller depending on the circumstances.
Best,
Lawrence
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