The use of email and the internet in the work place in Europe
Email and the internet are now fundamental aspects of a typical office worker's day. The benefits brought to businesses mean that email is now the preferred method of communication both internally and externally in the business environment.
Communication by email is cost effective, fast and convenient. Long documents can be sent over long distances at low cost, virtually instantly and the availability of a permanent written record means that contracts and other important documents can be agreed.
While businesses have been fast to embrace these advantages, they are only now becoming aware of the scope of the problems email and the internet use create. Issues to be addressed include reputational damage, disclosure of trade secrets, defamation, unauthorised use of business equipment, the personal use of working time, employee harassment and accessing and disseminating pornography.
As the email and the internet are such new mediums specific laws regulating their use are still in their infancy. Employment lawyers from seven CMS firms have researched employers rights to monitor the use of the email and the internet at work in the seven different European countries they cover (Austria, Belgium, France, Germany, the Netherlands, Switzerland and the United Kingdom).
Our research shows that although language, culture and legal foundations differ widely these countries approach employees' use of the email and the internet at work in very similar ways. The overriding balance is between an employer's right to legitimately monitor and control his employees' work and an employee's right to privacy. Privacy rights, data protection law and telecommunications regulations are relevant in most jurisdictions, although there are differences in their application.
All the countries have privacy rights. However in some countries the right to privacy must be balanced with other rights but in other countries this right is so entrenched as to be overriding. For example in Austria an employer can require his employees not to use the email or the internet for private matters and if there is such a requirement the employee cannot then claim that his e mails are private. It can be argued that any control of the e mails sent by the employee is lawful and the employer can consider any email sent by the employee as if it had been written on the employer's business paper and check it accordingly. However this is not the case in France. In the October 2001 decision of the Social Chamber of the Supreme Court involving NIKON France, the Judge stated that an employee's right to privacy was a fundamental right and "the employer cannot, without violating this fundamental right, take knowledge of any personal messages sent by an employee and received by him thanks to a tool provided to him for professional purposes even though the employer has prohibited that the computer be used for other than professional purposes".
Data Protection rights vary. Some countries have very comprehensive rights which are specifically focussed on the internet or e mail. For example the Swiss Federal Data Protection Commissioner (SDPC) who is entrusted with the enforcement of the Swiss Federal Act on Data Protection has issued recommendations on the control and use of email and the internet at work. The UK is expecting a comprehensive Code imminently. However, the legal data protection provisions in some other countries, such as Germany, do not contain any more extensive protection for the employee than the general right of privacy. In the Netherlands there is no separate data protection/privacy law and the Privacy Act (Wet Bescherming Persoonsgegevens) covers data protection.
Telecommunications legislation is frequently applied to cover email and internet use (for example the Belgacom Statute in Belgium and the Telecommunications Act (TKG) and Teleservices Data Protection Act (TDDSG) in Germany). Relevant case law is sometimes used to assist with interpretation of rights. The decision of Halford v The United Kingdom, a 1999 decision of the European Court of Human Rights is an important case on privacy and telephone tapping which has implications for internet and email use. It suggests that there can be no monitoring unless the presumption of privacy has been displaced by express notification to the employee.
Not surprisingly Switzerland (a non EU country) and the UK (a late joiner to the Social chapter) do have some fundamental differences from the other countries. For example there are no legal requirements (at least at present) for consultation with employee representatives or European Works Councils over either regulation of private use or sanctions. These are necessary, to a greater or lesser degree, in all the other five countries.
The success of sanctions against misuse by employees is limited by the amount of evidence the employer can gather. Evidence should be collected in a very cautious manner. In Germany if the employer breaches the principles on the permitted control then the evidence obtained by such means are not admissible in any unlawful dismissal proceedings. French case law shows how difficult it is to use such evidence in France
Despite the differences, all seven CMS firms agree that employers are advised to have written policies on the use of the email and the internet at work. These should be linked to the employer's disciplinary procedure so that breaches of the policy can be subject to an established disciplinary process.
For each of the seven jurisidictions a short report has been prepared addressing the use of the email and the internet in the work place.
Each report addresses the following issues:
- The right of control by the Employer - has the employer the right to control an employee's use of email and the internet at work and on what legal basis,
- Sanctions and responsibilities - what are the possible sanctions,
- Organisation of the use of email and the internet - how can an employer, in practice, control professional and private use.
