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Don't Look Now

It’s a growth industry and a complete mess, snooping on staff that is. I have been writing about the subject for at least three years and it has taken that long for the government, in the shape of the Information Commissioner to draw-up a code that business can use as a reference point for their obligations under the Data Protection Act.

The UK’s Data Protection Act of 1998 is based on the earlier European directive (95/46) and embraces all personal data regardless of commercial or civil activity. The problem facing company directors and civil servants is that breaching data protection regulations represents a criminal offence and as a consequence, a criminal record for anyone who happens to be convicted of neglecting or ignoring the legislation.

Add this to the fact that companies are increasingly paranoid about inappropriate content, viruses, harassment and the risk of commercial secrets slipping out of the door and you have the beginnings of an eavesdropper’s paradise. A series of high profile cases and the industry’s enthusiasm for the sale of ‘monitoring software’, has meant that many employers have started sweeping their mail servers for dodgy content, without giving a great deal of thought to the proper handling of what be thought of as personal information; guidelines for which are, at last, contained in the new code.

The important conclusion for all employers, reflected in the code, is that intercepting employees’ correspondence can only be justified to prevent malpractice or crime and that monitoring of any kind, in the workplace, can only occur if it is transparent, in that employees understand that this is happening. In other words, the code makes monitoring an exceptional activity, carried-out with an appropriate duty of care, rather than a rule, which can be applied quite arbitrarily in the workplace.

So, with research now showing that more people are being dismissed for Internet-related offences than ever before, employers now find themselves in a very difficult situation. It’s called ‘Vicarious Liability’ and more than ever before, if you happen to hold a responsibility for email or any other means of storing personal information, then you need to be sitting on-top of the current raft of European and domestic legislation instead of risking drowning beneath it.

If it is a good thing that the rules governing interception of employee communications are now defined, the disadvantage, from the point of view of the employer, lies in having to develop a policy, which allows the company to reasonably intercept communication without falling foul of the law. This still appears to me to be a highly emotive ‘can of worms’ and I wouldn’t be surprised to see the subject re-visited, yet again, in a year’s time. Leave the eavesdropping to GCHQ until then.


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