New Email Rules Could Cause Legal Confusion Say Experts

October 26, 2000

Leading e-commerce lawyers have warned that controversial employee monitoring regulations, set in motion on Tuesday, are unclear. The new DTI rules are part of the RIP Act, giving employers virtual carte blanche to monitor Internet access, emails and phone calls. They contradict parts of a new Data Protection Commission code of practice and could also be open to a human rights challenge in UK courts, say lawyers.

Speaking about the legislation, e-minister Patricia Hewitt said, "This strikes the right balance between protecting privacy of individuals and enabling industry and business to get the maximum benefit from new communications technology."

But Charles Swan, partner at Simkins Partnership, was doubtful. "The fact that the draft code contradicts what the DTI is trying to do shows there's confusion between the two," he said. "There could also be human rights issues that lead to it being challenged in UK courts. Either way, the code will have to be rewritten."

The DPC code of practice for employers comes from the office of the Data Protection Commissioner Elizabeth France (pictured). It's currently only in draft form but calls into question the validity of the new email laws.

A section tells employers that they "shouldn't open emails that are clearly personal". It also states, "no record should be kept in the system of the Web sites that employees visit or content that they have viewed."

Ian De Freitas, partner at law firm Paisner & Co, said the situation showed Government confusion on the issue of monitoring. "If an email is personal, how do you know if you don't open it?" he said.

Jonathan Cornthwaite, partner at Wedlake Bell, said a human rights challenge could be countered by "caveats and safety nets".

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