Email and Internet Monitoring in the Workplace: Information Privacy and Contracting-Out

Abstract

Privacy in the workplace in the UK is an emerging legal issue. This article uses the specific example of email and internet monitoring by employers to analyse whether and to what extent the right of information privacy is applicable to the workplace, and to show the danger of ‘contracting‐out’ from this right when basic privacy concepts of reasonable expectations and consent are applied within the dynamics of an employment relationship. The article goes on to explain how privacy‐protective legislation in the UK under the Human Rights Act 1998, the Regulation of Investigatory Powers Act 2000, and the Data Protection Act 1998 tends to exhibit these problems, due to the fact that information privacy poses a very direct challenge to management prerogative. A proportionality approach, as followed by the Information Commissioner in the draft Code of Practice on monitoring at work, is advocated as the most appropriate way to reconcile employee privacy with employers' interests.