PRIVACY IN THE WORKPLACE
to codify and circulate computer use policies to meet one of the statutory exemptions and thereby avoid liability. Te ECPA contains two distinct titles: one of which prohibits the ‘interception’ of electronic communications; and the other, the Stored Communications Act (SCA), limits the accessibility of electronically stored communications. Both titles include a consent exception applicable to the workplace. An employer can avoid liability under either title by imposing a user policy, reserving its right to intercept, monitor and access emails and other files contained on a workplace computer. Te introduction of a computer use policy in the workplace can form an important evidentiary foundation for an employer’s effort to terminate or otherwise discipline an employee. At the same time, an employer policy or practice that explicitly permits employee private email communications, including a system for distinguishing between public and private emails, can form the basis for an enforceable expectation of privacy.
Te UK has no legislation to deal with this. It relies on the European Union Convention on Human
Rights (ECHR). In Copland v. United Kingdom,
a woman’s telephone line, email account and
Internet usage were under surveillance without her knowledge and permission. Tis was held to be in violation of Article 8 (1) of the ECHR. Te court said that all communications from the office, phone calls, emails and Internet usage were part of the appellant’s private life and thus protected by the ECHR.
India too lacks legislation for this purpose, although the constitution clearly safeguards the right to privacy as a part of right to life under Article 21. Despite the fact that privacy is a fundamental right, it is a well-established principle that it is not an absolute right and that it may be lawfully restricted for the prevention of crime, disorder or protection of health or the protection of others’ rights and freedoms. In fact, the Supreme Court has gone as far as stating that if there were a conflict between the fundamental rights of two parties, the right that advances public morality would prevail.
Given the aforesaid decisions and findings by the Supreme Court of India, it may reasonably be expected that India would protect the interests of the employer or the employee, where one of those interests would advance public morality.
Meera Chature Sankhari is a senior associate at Luthra & Luthra Law Offices. She can be contacted at:
msankhari@luthra.com
Meera Chature Sankhari works in the intellectual property department of Luthra & Luthra Law Offices. She graduated from the National Law School of India University in the year 2001 and joined a leading IP boutique firm in New Delhi. Before joining the firm, she worked with a IP litigating firm in Delhi. Her primary areas of practice include IP transactions, advisory and litigation involving trademarks, copyrights, confidential information and copyrights.
www.worldipreview.com
World Intellectual Property Review May/June 2010
43
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