Employers need be aware of all new privacy legislation so that they can put policy into practice, says Simon Moores.
Snooping on staff is a growth industry and it's a complete mess.
I have been writing about the subject for at past 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, 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 about how to properly handle their employee's personal information, guidelines for which are, at last, contained in the new code.
The important conclusion for all employers 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, so 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 that can be applied quite arbitrarily in the workplace.
So, with research now showing that more people are being dismissed for internet-related offences, employers 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 e-mail or any other means of storing personal information, then you need to be sitting on top of the 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 revisited, yet again, in a year's time. Until then, leave the eavesdropping to GCHQ.
What do you think?
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Setting the world to rights with the collected thoughts and opinions of leading industry analyst Dr Simon Moores of Zentelligence.
Acting globally, Zentelligence (Research) advises governments, suppliers, business and the media on the evolution, application and delivery of leading-edge technologies and specialises in the areas of eGovernment and information security.
For further information on Zentelligence and its research, presentation and analyst services visit www.zentelligence.com
This was first published in June 2003