Technology Solicitors &
Internet Lawyers
Email and Internet Usage Code Consultation
Press
release (29th June 2001)
Thursday 28th June 2001, Manchester
The contentious issue of employer monitoring of employee email and Internet
access was the subject of a consultation conference held by the Information
Commissioner's Office (ICO) in Manchester at The Bridgewater Hall. High
profile organisations attended to discuss the controversial draft Code
of Practice. Discussion sometimes became heated as different interest
groups from the CBI to the TUC put their perspective to the Information
Commissioner, Elizabeth France.
Ms France reminded those who called for proper reflection on the Code that
the laws already exist and compliance is required (except for those able
to enjoy the period of grace under the Data Protection Act). The Code
had to be in place soon to give business proper guidance: it aimed to address
concerns of employer groups that compliance was costly by providing practical,
clear guidance.
"The cost of taking advice and ignorance of the law means that most employers
risk fines as well as complaints from disgruntled employees, not to mention
the damage to morale in a company with a 'Big Brother' culture" said Maitland Kalton of
Kaltons, the Internet lawyers. In his experience, progressive companies
viewed snooping as a last resort. An upbeat email and internet use policy
should clearly spell out acceptable and unacceptable plus the potential
consequences of abuse for both employer and employee. The Code should
help employers ensure that their policy complies with the maze of laws
governing this area.
The diverse panel included representatives from Shell, trade unions and Oxford University. They led a lively debate
on the Code which seeks to untangle a complex web of legislation and regulation. Assistant
Information Commissioner, David Smith acknowledged that the first draft
Code was "over-complex and difficult to follow" and he assured those attending
that the final draft (due out in the Autumn) would be "clearer but not
necessarily shorter".
The consultation group broadly welcomed the draft Code. Hannah Reed of the
TUC welcomed it and recognised that employers have "legitimate concerns
and interests to protect."
Few disagreed that wholesale monitoring
of employee emails and internet usage was unacceptable, both legally and
from a 'good management' perspective, although one solicitor during a heated
exchange could not understand why. Most people agreed, however, that his
approach would breach the Human Rights Act as well as the Data Protection
Act 1998. Conversely, everyone accepted that monitoring is sometimes essential,
many considering that the employer should usually have reasonable suspicion
of misconduct before doing so.
Vivien Bowern, Chair of CBI Data Protection Panel,
offered a different perspective - for many businesses, the issue was "access
to email" not its monitoring. Business, he said, needed to have a proper
record of e-mails, not to monitor them, just to know what had taken place
- e.g. the terms of a deal.
Employers also feared that the Code was effectively "regulation by the back
door" since Ms France made it clear that the Code should be regarded as
"best practice" whilst not being mandatory. In a compliance dispute her
office would certainly query why the Code had not been discussed. David
Smith recognised that as the final Code interprets current law, it cannot
fully satisfy employer and employee as the ICO has no power to change it
- any points outside the existing legal framework could only be the basis
of a discussion of future reforms.
In any event, as the speaker for the Dutch experience, Diana Alonso-Blas,
said, "It is impossible to eliminate all risks to employers from email
and internet use". So, she argues, employers have to take a "proportional"
view - i.e. weigh up the risk against the harm to an individual's human
rights.
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NEED TO KNOW MORE?
For further information
on email and the Internet internet use policies, contact Maitland
Kalton or Julian Danobeitia. Should you prefer to telephone, call us on +44 (0)207 278 1817.
Kaltons Solicitors, Suite 302, Spitfire Studios, 63-71 Collier Street, London, N1 9BE. Telephone +44 (0)20 7278 1817; Fax: +44 (0)207 278 1835.
© Kaltons Solicitors
2000. All rights reserved.
