This document discusses balancing employees' privacy rights with employers' interests regarding internet and social media use in the workplace. It provides an overview of relevant case law and principles from the European Court of Human Rights and Data Protection Acts. Specifically, it examines cases related to monitoring employee internet/email use and social media posts. The document stresses the importance of employers establishing clear internet and social media use policies that are properly communicated to employees.
Slides Part 02 Copyright Law for Digital teaching and Learning May 2014
Employees and Internet Use - Legal Aspects
1. EMPLOYEES AND
INTERNET USE
Darius Whelan, Faculty of Law, University College Cork
Dublin Solicitors Bar Association Seminar, December 2012
2. BALANCING COMPETING INTERESTS
Employee’s Privacy Employer’s Interests
Employees do not leave their privacy at the front door
when they come to work
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3. EMPLOYER‟S INTERESTS / DUTIES
Employers have general right to determine work
tasks and control contract performance
Employer has property rights in equipment
Employers may lay down quality and behaviour
standards
Employer must safeguard employees‟ health, safety
and welfare
Employer has duty of trust and confidence towards
employee
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4. PRIVACY
Halford v UK (1997):
Assistant Chief Constable – Office phones „tapped‟ – No
warning
She had a reasonable expectation of privacy and so art. 8
had been breached
Copland v UK (2007):
Employer (Welsh public college) monitoring internet
usage, e-mails and telephone traffic of Ms.C (employee)
without her knowledge
Content not monitored; instead names of recipients etc.
Held: Breach of Article 8
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5. Köpke v Germany (2010)
Employer had used covert video surveillance for
two weeks to investigate employee for theft
Domestic law required proportionality, etc.
ECtHR held complaint under art. 8 manifestly ill-
founded
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6. KEY DATA PROTECTION PRINCIPLES
Data Protection Acts 1988-2003:
Data must be obtained and processed fairly
Data subject must be informed of purpose for which data are
processed
Legitimate Processing:
Various categories including
Data subject consenting to processing, or
processing is for „legitimate interests‟ of controller without unduly
prejudicing subject‟s rights/ freedoms / interests
Data must be kept for specified, explicit and legitimate
purposes
There must be appropriate security measures
Data subject has right of access to data
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7. Gresham Hotel (2007)
Data Protection Commissioner Case Study 6 of 2007
Covert video surveillance
Other employees being investigated, not this particular
employee
Gardaí were not involved
Commissioner found data was being processed in a manner
incompatible with its purpose
Covert surveillance would require actual involvement of
Gardaí or intention to involve them
Amicable resolution reached
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8. Ali v First Quench (2001)
Covert video surveillance in off-licence office – thefts of
stock – Mr A prime suspect
Mr A was filmed having sexual intercourse in office while
shop open
Dismissal fair
McGowan v Scottish Water (2004)
Video surveillance of employee‟s house, due to
suspicion of timesheet irregularities
Dismissal fair; did not breach privacy
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9. Mehigan v Dyflin Publications (Ireland, 2002)
M received 3 pornographic images by e-mail and forwarded them
on to someone else
Tribunal did not accept this was a one-off incident. Evidence of
other material on computer inc. sexual cartoons
E-mails can often cause offence
The EAT will be heavily influenced by the existence of a written
policy reserving right to dismiss
Unlikely dismissal permissible otherwise
Possible exception – downloading obscene pornography
(Distinction between facts here and „exceptional‟ cases unclear)
Onus on employer to introduce policy
Dismissal unfair, but employee contributed substantially
€2,000 for unfair dismissal plus €2,800 in lieu of notice
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10. Murray and Rooney v ICS Building Society (2011)
Two employees allegedly circulated pornography by
email
EAT found investigation flawed
Investigation took place without their knowledge;
they could not make submissions on terms of
reference
Investigation involved only small sample of emails
and did not include employees who had deleted
emails
Dismissal was disproportionate
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€30,000 to one employee; €36,000 to the other
11. Kiernan v A Wear (2008)
Employee posted derogatory comments on BEBO
E.g. Regarding manager “She called me a liar. I
f**ing hate that c**t”
Visible to customers
Fair investigation held. Employee dismissed
EAT found dismissal disproportionate
Employee contributed to her dismissal
€4,000 for unfair dismissal
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12. Walker v Bausch and Lomb (2009)
Employee wrote on intranet: “500 jobs to be gone at
Waterford plant before end of first quarter 2008”
No proof that employee had received intranet policy
Fair hearing held. Employee dismissed.
EAT found dismissal disproportionate
Employee greatly contributed to situation
€6,500 for unfair dismissal
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13. O’Mahony v PJF Insurances (2011)
Facebook – Employee called manager a “bitch”
At first, the page was accidentally seen
Employee then allowed full access
A number of disparaging comments
Suspended pending investigation
EAT – Significant breach of trust which made
employment untenable
Employer acted reasonably. Dismissal fair.
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14. GUIDANCE
Council of Europe
Recommendation R (89) 2 on Protection of
Personal Data Used for Employment
Purposes 1989
International Labour Organisation
Code of Practice on Protection of Workers‟
Personal Data 1997
15. Article 29 Working Party
Opinion 8/2001 on processing of personal data in the
employment context
Opinion 4/2004 on video surveillance
Data Protection Commissioner (Ireland), Monitoring
of Staff, Guidance Note, 2004
Data Protection Commissioner (Ireland), Data
Protection and CCTV, Guidance Note, 2004
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16. DRAWING UP A POLICY
Review legislation, guidance and cases
Clarify purposes of monitoring (if any) – must be
proportionate
Notify purposes of monitoring to employees – e.g.
state if can be used for disciplinary purposes; may
ultimately lead to dismissal; misconduct v gross
misconduct
Clarify ownership of Twitter followers, etc.
Perhaps permit reasonable personal use of e-mail /
internet / social media
Regular reminders of policy
Other issues – see material cited
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17. References - See list provided
Contact Details:
Dr Darius Whelan, Faculty of Law,
University College Cork
http://research.ucc.ie/profiles/B012/dwhelan
Email d.whelan@ucc.ie
Twitter: @dariuswirl
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