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31st May 2007
In Copland v UK, the European Court of Human Rights said that Mrs Copland’s rights were violated when her employer monitored her telephone, e-mail and internet usage at work.
Mrs Copland was employed as the personal assistant to the principal of a higher education college in Wales, but was also required to work closely with the deputy principal (DP).
At some time during her employment, the DP started to monitor her telephone, e-mail and internet usage. At the end of November 1999, the college principal became aware of the monitoring and instructed the DP to stop it. The college had no policy in force at the time regarding this type of monitoring.
As the monitoring took place before the introduction of the Human Rights Act 1998 (enforceable from October 2000), Mrs Copland could not bring a direct claim against the college. However, as a public sector employee she was able to claim that the Government had breached her right to privacy under article eight of the ECHR.
The Government admitted that the college had monitored some of her telephone, e-mail and internet usage, but argued that the information it analysed had all been automatically generated. They had done so to ascertain if she had been using college facilities for personal use, and did not amount to a failure to respect private life and correspondence.
If, however, the court did think it amounted to interfering with her rights under article eight, it argued that it was justified in its actions because, as a publicly funded employer, it had to ensure its facilities and resources were not being abused.
The Government also argued that such interference had a basis in domestic law in that the college had the necessary powers, as a statutory body, “to take reasonable control of its facilities to ensure that it was able to carry out its statutory functions”. That is, to provide higher and further education.
Finally, it argued that what it had done was “proportionate” in the circumstances, “as any interference went no further than necessary to establish whether there had been such excessive personal use of facilities as to merit investigation.”
The Court, however, disagreed and held that Mrs Copland’s rights under article eight had been violated.
Relying on previous case law such as Halford v UK, it said that it was clear that telephone calls from business premises were covered by article eight. It therefore followed that e-mails sent from work should be similarly protected, as should information derived from monitoring personal internet usage. As Mrs Copland had not been warned about the monitoring, she had a “reasonable expectation” that her privacy would be respected.
But were the actions taken by the college justified? In order to succeed on that point, the Government had to show that any interference by the college was “in accordance with the law”. And the Court said that the law had to “be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are empowered to resort to any such measures.”
As there was no provisions in existence in the UK at that time (whether in terms of general domestic law or the governing instruments of the college), regulating the circumstances in which employers could monitor the use of telephone, e-mail and the internet, the interference could not be justified.
This decision is clearly right on its facts but it is important to recognise its limitations, given that it relates to the late 1990s.
Any monitoring of telephone calls, emails and internet usage would now be governed by laws such as the Data Protection Act 1998, and/or the Regulation of Investigatory Powers Act 2000. These provide a legal framework for routine monitoring to be carried out subject to certain safeguards (see LELR 116).
Many employers now also have email and internet use policies which routinely allow monitoring to take place in certain circumstances. Further information can be found on www.ico.gov.uk.