In this case from the European Court of Human Rights, an employee from a UK College was subjected to monitoring of telephone, email and internet use. There was no policy in place at the relevant time regarding monitoring.
The court briefly considered the relevant domestic law, which included the Regulation of Investigatory Powers Act 2000, the tort of misfeasance in public office, the Data Protection Act 1984 (now replaced, but this was the relevant legislation at the time), the obligation of trust and confidence between employer and employee, and the lack of a distinct law of privacy.
It went on to consider whether there was a breach of Article 8 - namely whether the College had interfered with her right to respect for private life and correspondence. The court referred to the existing case law which states that telephone calls made from work do consititute an element of private life. It therefore summised that emails must also fall within this category, together with information gathered from internet monitoring.
As this was information relating to the private life of the individual, and it was monitored, the court found that there was interference with Article 8. It then turned on whether this interference was “in accordance with the law”.
Whilst the government argued that College was authorised under its statutory powers to do “anything necessary or expedient” for the purposes of providing higher and further education, the court found this unpersuasive.
There was nothing in law at the time which permitted such monitoring (and in particular the provisions of Telecommunications (Lawful Business Practice) Regulations 2000, which permit monitoring under certain conditions) were not yet in force. The individual in question had not been notified of the monitoring and so could not have expected that this monitoring was going to take place.
There had therefore been a breach of Article 8, and the court awarded damages for non-pecuniary loss of €3,000, as well as legal costs of €6,000 (which were limited due to the other complaints which had been brought but not upheld - total costs claimed had been £9,363).
This case doesn’t impact greatly on monitoring taking place today under the regime now in place. However, it does stress the fact that an employee does carry out his or her private life whilst at work, and as such there is some expectation of privacy.
Tip: Monitoring if it does occur should take place only within the realms of the Lawful Business Practices Regulations, and employers should ensure that employees are informed of and understand the monitoring that takes place.
COPLAND v. THE UNITED KINGDOM - 62617/00 [2007] ECHR 253 3 April 2007 [link from BAILII]
