29 December 2005

Privacy: New Staff Monitoring Software

In 1999 I was asked to present a paper to the meeting of the Section of Business Law of the International Bar Association in Barcelona on misuse of internet access by employees. At the time there was a lot of concern about employer's potential liability for racist, sexist or otherwise offensive emails like the "Beer and Women" comparison as well as fear that the recently passed but not yet enacted Human Rights Act 1998 might prevent effective monitoring.

As we were negotiating what turned out to be a rather ill advised and very short-lived merger with a London common law set, I couldn't do it myself but I did write a paper for my pupil Joanne Gretton to present. The paper contained valuable contributions from Joanne and also from my wife, Yatoni, who then practised at the employment bar. At paragraph 4 we argued that an employee's implied duty of fidelity would preclude unauthorized use of the internet, that some reasonable monitoring of such access would not necessarily infringe an employee's Convention rights and that companies should adopt an information handling policy.

At that time the main impediment to implementing our suggestions was the absence of any reliable internet use monitoring software but an article by Munir Kotadia in today's Tech News on ZD Net (Employees to be billed for personal Net use?) suggest that there may now be such an application. According to Munir, the Australian company Exinda has developed a system that allows a company to monitor exactly which web sites are visited by each employee and how much bandwidth has been used in terms of a cash loss to the employer. Quoting one of the company's directors, Munir says that the system was designed to ensure that employees could be held responsible for the cost of misused bandwidth and time. It opened the possibility of a 'please explain' and a bill for the costs of the bandwidth and time you wasted, continued the director.

Of course, the law is one thing, good industrial relations is another. There will be considerable cultural differences. I can see supine southerners with sky high mortgages buckling down to this sort of intrusions. I can't see - at least I hope I can't see - my fellow northerners putting up with it.

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