Data protection guideline sparks Big Brother fears

The third part of the Data Protection Code of Practice, which deals specifically with monitoring of communications in the...

The third part of the Data Protection Code of Practice, which deals specifically with monitoring of communications in the workplace, was placed on the Information Commissioner's Web site recently, writes Sue Nickson.

Previous drafts of this section had been sent only to certain organisations for comment - an indication of the concerns that have been expressed through this selective consultation process.

The draft code on monitoring remained on the site until 8 August for public consultation. In other words, public opinion is being taken into consideration.

What is in the code?
This third section has proved to be the most controversial element of the code. The other parts - dealing with recruitment, retention of records and medical reports - have received only a fraction of the public attention.

Why is this so? The difference in reaction seems to be mainly due to the concern of employees that the right to listen to communications or to read private mail will introduce a "Big Brother" state of suspicion and paranoia.

On the other side of the fence, employers are loath to invest lots of money in IT and communications equipment only for workers to spend all the working day shopping for online bargains or getting quick thrills on porn sites.

So far, the draft code has been criticised as being too complex, long and unduly restrictive. The main concern is that it suggests employers should not read the content of private e-mails under any circumstances and that any covert monitoring of employees should be done only with the prior approval of the police.

Will the code work?
Businesses have real concerns over whether these restrictions are workable in practice. After all, why should employers be denied the right to access e-mails made on a business computer, as these employers will ultimately be liable for any unsavoury material that is sent out?

In relation to covert monitoring, the obvious example is the retailer wishing to put in CCTV to observe employees working on tills. Such monitoring would be carried out to detect, and alert employers to, any fraudulent activity, or simply to check on levels of customer service.

Recent reports have indicated that the information commissioner is considering a u-turn on these controversial parts of the code.

However, with the most recent airing being the third consultation period on this particular document, nothing can yet be said to be certain.

Sue Nickson is a partner and head of employment law at Hammond Suddards Edge

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