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A Pandora's In-Box

Screening of employee's emails could be in breach of telecommunications laws, according to Minter Ellison lawyer Megan Dixon.

In the year 2000, the information super-highway is a path well travelled. Most of us now consider the internet (particularly email and the world wide web) as a necessary, if not essential, business communication tool.

However with the advent of the internet, comes an immense potential for employers to become liable for employees' misuse and abuse of this communication medium. Conversely employees should understand and be wary of their exposure to potential risks arising from their use of their employer's internet facilities.

There is a great deal of debate occurring amongst commentators about the degree to which an employer can and should monitor and control the content of employees' internet and email communications.

Whilst some privacy groups have expressed concerns regarding the intrusion of employers into employees personal communications, there is some acknowledgment amongst them that a degree of monitoring and control is necessary to protect not only the interests of the company, but employees who may be subject to offensive email and other internet communications.

There appears to be no legislative prohibition on employers monitoring or controlling employee email or other internet communications. Current privacy legislation in Australia has limited impact on internet communications. The Commonwealth Privacy Act 1988 (Cth) is confined to regulating the tax file numbering system and the collection, use and access to personal credit information. The Queensland Invasion of Privacy Act 1971 (Qld) similarly does not extend to internet and email communications.

In essence this means there is no general right to privacy for employees in Queensland in relation to internet communications.

The Privacy Amendment (Private Sector) Bill 2000 which was introduced into the House of Representatives on 12 April 2000 to amend the Privacy Act 1988 (Cth) does not appear to specifically prohibit monitoring of employees' internet communications. The Senate Legal and Constitutional Legislation Committee tabled its report regarding the Bill in the Senate on 10 October 2000. The Bill looks like it will become law by the end of the next sittings.

The Privacy Amendment (Private Sector) Bill 2000 will essentially create a nationwide scheme for the appropriate use of personal information in the private sector.

The Bill requires that organisations protect people from unauthorised access and disclosure of 'personal information' that they hold. It requires that organisations must not collect 'personal information' unless the information is necessary for one or more of its functions or activities. Organisations will also be required to make public their policy on privacy under the Bill. The Bill exempts 'employee records' from the legislation. The definition of an 'employee record' is broadly defined to include the types of information held on personnel files. The advisory report on the Bill tabled in the lower house by the Standing Committee on Legal and Constitutional Issues on 26 June 2000 does not make any further recommendations about the issue.

The Office of the Privacy Commissioner has predicted that in relation to the private sector, the Bill may apply to staff emails that contain personal information other than 'employee records' in certain circumstances; and that the Bill may also apply to logs of web browsing activities . However, the Bill does not specifically prohibit monitoring of email and other internet communications by employers. Such practice would seem consistent with the intent of the Bill and proposed National Privacy Principles provided that employees are aware of the reasons for its collection and the consequences for the individual if it is collected.

More importantly, the Bill will not prohibit this type of activity if the employee consents to it. If employees are comprehensively informed of their employer's monitoring and control of email and internet content and the employee carries on using the employer's facilities, it could be argued that the employee has impliedly consented to the practice. An employee's written consent would remove doubt about this situation.

If the Bill becomes legislation, it remains to be seen what effect, if any, the legislation will have on this practice.

In terms of the ability for employers to actually monitor and control email and internet communications, technology is improving rapidly. There is currently screening software available that can filter both email and other internet communications. Many larger organisations already use 'net nannies' to reduce the risk of access to web sites with particular key words in them. Other companies conduct random audits of employees' emails for offending content.

There is possibly one piece of legislation in Australia that may be able to limit the monitoring or control of internet communications by employers, although the position under this legislation is less than clear. The legislation is the Telecommunications (Interception) Act 1979. This legislation essentially prohibits the interception of a communication passing over a telecommunications system by listening to or recording (by any means), such a communication in its passage over that telecommunications system, without the knowledge of the person making the communication. Some commentators suggest that an employer's network server that keeps a cache copy of every email or internet connection made or received by an employee, may be an 'interception' of a communication for the purposes of that legislation.

Whilst the writer does not profess to have technical knowledge of the workings of the internet, it is possible that an employer's network server could arguably form part of a telecommunications system. Mail scanning applications that automatically examine phrases, words or viruses and quarantine them from the employee user, may arguably be in breach of the legislation as they 'listen to or record' another persons communication passing over a telecommunications system.

The Telecommunications (Interception) Act 1979 has not been tested in relation to this issue in Australia. However, there is a decision in the United States that suggests that senders of internet communications impliedly consent to the storage of their communication as it is transmitted over the internet through a network of servers to its ultimate destination. The decision suggests that in these circumstances, because the sender impliedly consents to this occurring, there is no unauthorised 'interception' It remains to be seen how the Australian courts will approach the issue.

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  Issue 77 contents

»	Games Workers Still Waiting on Closing Ceremony
»	Showdown: Howard Faces Court Over Rail Sell-Off
»	World Awaits Landmark Slave Labour Decision
»	American Voters Reject Vouchers
»	Illawarra Fights The Big Bastard
»	Retailers Rethink FairWear Retreat
»	Killer Holidays: Activist Fired for Taking Vacation
»	ANZ Faces Contracts Challenge
»	Cup Workers Score Heady Brew
»	Meals on Wheels Turns Mean
»	Wild Horses Get Maurie's Goat
»	Labor Council backs Souths Rally
»	Sisters Celebrate Four Years
»	Reith to Face the Music

»	The Soapbox
»	Sport
»	Trades Hall
»	Tool Shed

»	Nader no Fels
»	Sartor's Veladrome

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