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Employment  Memo 2007 Newsletter Issue 2

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RECENT CASES

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Data protection and privacy

Right to privacy

1. Monitoring and surveillance

¶¶6252, 6150  Where an employer intends to monitor his workers, any monitoring should be carried out subject to a written monitoring policy, should be proportionate and needs to be justified by some benefit that it brings to the employer. Further, covert monitoring, that is monitoring about which the subject of it is unaware, is only justifiable in exceptional circumstances (see ¶6250).

In this case, a secretary C worked for a further education college. The college had no monitoring policy. For several months, the secretary was monitored by her employer when using telephone, email and internet. The ostensible purpose of monitoring was to ascertain whether the applicant was making excessive use of her employer’s facilities for her own personal benefit. The European Court of Human Rights ruled that the conduct of the employer had breached C’s right to privacy under Article 8 of the European Convention on Human Rights.

Copland v UK - 62617/00 [2007] ECHR 253 (3 April 2007)

2. Breach of confidence: House of Lords’ decision in Douglas v Hello! Ltd

¶6285 In the final instalment of the Douglas v Hello! Ltd saga, the House of Lords by a 3-2 majority allowed the appeal by OK! on the ground of breach of confidence. The House of Lords confirmed that there was no new common law tort of invasion of privacy (see Wainwright v Home Office (memo point 1)). Instead, Lord Hoffman in his leading judgment emphasised that in recent years, English law has adapted the action for breach of confidence to provide a remedy for the unauthorised disclosure of personal information (see Campbell v MGN Ltd). This development has been mediated by the analogy of the right to privacy conferred by Article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by Article 10 (see memo point 2). However in this case, as OK!’s claim was to protect commercially confidential information and not the protection of privacy, no consideration of Convention rights was necessary.

OBG Ltd and ors v Allan and others; Douglas and another v Hello! Ltd and others; Mainstream Properties Ltd v Young and others [2007] UKHL 21