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ELECTRONIC COMMUNICATIONS & THE LEGAL IMPLICATIONS

ELECTRONIC COMMUNICATIONS & THE LEGAL IMPLICATIONS. Ian Tranter Partner, Employment Department. THE RISKS: This day and age. Workplace culture No privacy law Conflict of interest Privacy of the Employer Monitoring/Surveillance. THE RISKS: Real Issues I. Unintentional binding contracts

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ELECTRONIC COMMUNICATIONS & THE LEGAL IMPLICATIONS

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  1. ELECTRONIC COMMUNICATIONS& THE LEGAL IMPLICATIONS Ian Tranter Partner, Employment Department

  2. THE RISKS: This day and age • Workplace culture • No privacy law • Conflict of interest • Privacy of the Employer • Monitoring/Surveillance

  3. THE RISKS: Real Issues I • Unintentional binding contracts • e-mail harassment/vicarious liability • downloading pornography • down time/unauthorised use

  4. THE RISKS: Real Issues II • Defamation • Disclosure • Breaches of Confidentiality

  5. in writing binding specify uses prohibitions access expectation deletion sanctions monitoring privacy rules LIMITATION OF RISK: The Acceptable Use Policy

  6. PRACTICAL IMPLICATIONS • Formally accepting the A.U.P • Nominated arbitrator • Dunn -v- IBM (UK) Ltd • Compliance & Monitoring • Halford -v- United Kingdom

  7. MONITORING COMPLIANCE Achieving the balance Protecting Business Needs -v- Expectation of Privacy

  8. MONITORING COMPLIANCE • The European Convention on Human Rights • The Human Rights Act 1998 • The Regulation of Investigatory Powers Act 2000 • The Telecommunications Act (Lawful Business Practice)(Interception of Communications) Regulations 2000 • The Data Protection Act 1998

  9. MONITORING COMPLIANCE The Human Rights Act 1998 • does not apply to individual employers • indirect effect via courts • no absolute right to privacy (Halford -v- UK) • ECHR exceptions protects monitoring • proportionality

  10. MONITORING COMPLIANCE The Regulation of Investigatory Powers Act 2000 (“RIPA”) • governs the interpretation and monitoring of communications • unlawful to intercept without consent • difficulty in obtaining consent

  11. MONITORING COMPLIANCE The Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (“LBP Regs”) • authorises monitoring under RIPA • advance warning to employees… • …no consent required… • … but only for the purpose of...

  12. MONITORING COMMUNICATIONS (LBP Regs - continued) • Recording evidence of business transactions • Compliance with regulatory obligations • Effectively operating employer’s systems • Standards of training and service • Preventing/detecting criminal activity • Preventing unauthorised use of the system

  13. MONITORING COMPLIANCE The Data Protection Act 1998 • interception = “data processing” • the Codes of Practice (Pt 3 “monitoring at work”) • Limit monitoring to traffic data rather than content • Spot checks rather than continuous monitoring • Automated monitoring/restricted circulation • Target monitoring areas of high risk

  14. CREATING A BALANCED CULTURE • Formulate an AUP • Sanctions • Explain and Educate • Update the AUP

  15. ELECTRONIC COMMUNICATIONS& THE LEGAL IMPLICATIONS Ian Tranter Partner, Employment Department

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