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Email surveillance ruling fails to resolve muddle

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Analysis Doubts about the effectiveness of regulations designed to safeguard privacy in the workplace have surfaced just days after the long-delayed rules were introduced.

Last week the UK Information Commissioner published a code of practice on surveillance in the workplace. This requires companies to inform employees if they are monitoring phone calls, emails and Internet use. The Commissioner, Richard Thomas, said the guidelines try to balance the needs of employers with the rights of employees.

However, critics say the Employment Practices Data Protection Code, more than two years in development, is still too vague.

Dai Davis, an IT lawyer at Nabarro Nathanson, said the regulations fail to provide clear guidance. This is unsurprising, he notes, because the rules deal with issues touched by the very different requiremnet anti-terror, data protection, human rights laws and Regulation of Investigatory Powers Act.

"The regulations are very late and still unsatisfactory," Davis said. "What the Information Protection Commissioner says is not law, just guidance. The Commissioner is only the policeman trying to interpret very complex offences. It will be ultimately up to European courts to decide where the law stands."

According to early reports, businesses which fail to comply with the new code of practice could be taken to court by disgruntled employees. But Davis argues that this is expensive and unlikely to happen. For the same reason, the Commissioner is unlikely to use the law as a tool against firms which fail to implement the code.

Jamie Cowper, a technology consultant at messaging specialist Mirapoint, warns that employees should be under no illusion that the code guarantees email privacy.

"Essentially, any communication that goes over a company's network is the property of that organisation. It is the organisation that is ultimately liable for even accidental security breaches, so unnecessary risks should be protected against," he said.

Currently, many firms monitor their employee's online activities, in order to guard against spam, viruses or the circulation of inappropriate material within offices. This level of monitoring can still to be justified, according to Mirapoint, providing that companies define a clear email policy and communicate it to employees.

Employee management firm Websense supports the call for a clear, written policy as the foundation of a firm's monitoring practices. However, this remains a vexed legal and ethical issue, according to chief technology officer Harold Kester. "Whenever you have monitoring there is a risk of abuse. This has to do with managing employees' expectations of privacy," he said. ®

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