Permission to access employees’ private messages is not as straightforward as it seemsThere has recently been a lot of publicity in the media around the European Court of Human Rights’ (ECHR) recent decision on accessing employees’ private messages, and it’s not as straightforward as you may think.
Some have suggested that this ruling means employers can have free reign to access their staffs private messages, however this is not the case and in fact, not much has changed.
As summed up by City AM – The European Convention on Human Rights, which is incorporated into UK law, states that everyone has the right to respect for their private and family life, their home and their correspondence. There should be a balance between the general interest of the community and the individual’s fundamental freedoms. Although only public bodies must expressly comply with this right, it is relevant to all employers (including the private sector) as courts and tribunals must interpret, as far as possible, all legislation consistently with the right.
In this latest case, an employer was judged as to whether they had acted lawfully by accessing an employee’s private messages on a business Yahoo Messenger account, where the employer’s rules banned use of the company’s IT systems for private purposes.
The Court determined that the right to privacy was engaged, but that it was reasonable to check that the employee was completing their professional tasks during working hours. The Court was in fact particularly swayed because the account had been accessed on the assumption that the messages related to professional activities.
The Court did not state that employers could access/monitor business or private accounts as a general permission. Everything will depend on the specific circumstances. If an employer allowed employees some personal usage of the company IT equipment and may monitor usage, then monitoring could be acceptable. As long as the monitoring was reasonable and proportional.
The data protection law does require employers to provide detailed information to their employees about monitoring activities. Employers should have legitimate grounds for monitoring and avoid unjustified intrusions into the employees’ private life. For example, the monitoring of email content from private accounts would be seen as one of the most intrusive forms of monitoring – and could be extremely difficult to justify.
The difficulty lies in determining how the employer will know for certain if an email or message is relevant to the business without opening it?
Could employers be playing with fire by ‘snooping’ on their employees? With the risk of claims, damages and fines, employers should think very carefully before any monitoring activities take place.
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