WRITTEN QUESTION E-3432/00

by Cristiana Muscardini (UEN) and Sergio Berlato (UEN) to the Commission

(7 November 2000)

Subject: Supervision of employees

The Blair Government has authorised, as from 24 October 2000, all companies based in the UK to carry out checks on their employees' e-mails and phone calls without their prior agreement.

Given that Belgian law also authorises employers to check that their employees use communication equipment provided by the company solely for professional purposes, albeit subject to their agreement, does the Commission not consider that such methods are a blatant infringement of the principle of protection of human rights which the same governments so often like to brandish?

Answer given by Mr Liikanen on behalf of the Commission

(16 February 2001)

The Honourable Members are referring to UK Statutory Instrument 2000 No 2699 entitled The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 which transposes Article 5.2 of Directive 97/66/EC(1). The UK has recently notified this legal instrument to the Commission.

We understand that the Honourable Members are also referring to Belgian law. In addition to the individual consent, it provides for different conditions to be fulfilled to ensure the lawful surveillance of the employees by the employers (information, proportionality and necessity mldr). In particular, the individual's consent cannot be considered valid if it is given as globally as in the context of the general employment relationship. The Belgian data protection authority has issued advice on this issue along the lines indicated above on 3 April 2001.

In general, Article 5 of the Telecommunications data protection Directive requires Member States to ensure confidentiality of communications by means of public telecommunications services and networks. The Article therefore does not cover communications transmitted entirely over private networks, but it does cover communications originating on private networks and terminating on public networks or vice versa. For the recording of such communications consent of the users is required.

However, as it may be difficult to obtain explicit prior consent of both users for recording of communications which businesses need in order to keep proof of transactions, for instance of orders by telephone or e-mail to buy shares, an exemption has been created in the same article for this type of recording that is part of normal, lawful business practices.

Directive 95/46/EC(2) provides for the protection of fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. This Directive does not contain any specific rules for the protection of employee data at the workplace but the general principles for lawful processing of personal data must be respected. Surveillance of workers' communications by their employers could be lawful, but only in restricted circumstances where the consent of the parties is obtained or the legitimate interests of the employer override the interests for fundamental rights and freedoms of the worker. In such cases the monitoring should be limited to what is strictly necessary for a defined and legitimate purpose and for example be able either by technical means or a classification of calls or e-mail to exclude private communications from such practices and the information obtained must not be used for other incompatible purposes. In such cases the employer should inform the workers of the surveillance.

Moreover, national regulations must comply with the general principles of Community law which, according to the case law of the Court of Justice, also comprise fundamental human rights as laid down by the European Convention on Human Rights, including the right to privacy.

In accordance with its Social Policy Agenda(3) the Commission is currently preparing a consultation of the social partners on data protection in the employment context and related issues (monitoring of workers, for example). This will provide guidance to the Commission in determining how this matter could be dealt with at Community level.

The Commission would also like to draw the Honourable Members' attention to the Charter of Fundamental Rights of the EU, which provides for respect for private and family life, home and communication in Article 7 and for the protection of personal data in Article 8. In addition, Articles 21, 26 and 31 have specific relevance to workers and the protection of their private data.

The Commission will examine whether the new UK regulations and any similar legislation in other Member States are in line with Directives 95/46/EC and 97/66/EC.

(1) Directive 97/66/EC of the Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ L 24, 30.1.1998).

(2) Directive 95/46/EC of the Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995).

(3) COM(2000) 379 final.