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New Regulation on e-mail and telephone monitoring


On 24th October, the Government introduces new regulations that govern the way in which businesses can record or monitor e-mails and phone calls. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, set out a number of circumstances in which it would be lawful for an employer to monitor, intercept and record communications without the consent of the sender, recipient or caller.

The main circumstances highlighted in the Regulations are:

  • to establish the existence of facts relevant to the business e.g. to keep records of transactions and other communications in cases where it is necessary or desirable to know the specific facts of the conversation. 

  • to ascertain compliance with regulatory or self regulatory rules or guidance e.g. monitoring as a means to check that the business is complying with regulatory or self-regulatory rules or guidelines.

  • to ascertain or demonstrate standards which are or ought to be achieved by persons using the telecommunications system in the course of their duties e.g. monitoring for purposes of quality control or staff training.

  • to prevent or detect crime e.g. monitoring or recording to detect fraud or corruption. - to investigate or detect the unauthorised use of their systems. e.g. to ensure that employees do not breach company rules on the use of the system 

  • to ensure the effective operation of the system - for example monitoring for viruses.

In addition to the above, the Regulations allow monitoring (but not recording) without consent:

  • for the purpose of determining whether or not the communications are relevant to the business e.g. checking the e-mail accounts of staff who are absent to access business communications. - in the case of communications to a confidential anonymous counselling or support line e.g. in order to protect or support help line staff.

Actions

The requirement to inform staff

If a business intends to make interceptions without consent for one of the allowed purposes, they are required to make all reasonable efforts to inform every person who may use their telecoms system that communications may be intercepted. In other words, employers should update staff contracts or handbooks with a clause stating that interceptions could take place.

If a business wants to make an interception outside the allowable reasons, they need to gain the consent of the sender and intended recipient of the communication. An example of this could be an interception for purposes such as marketing or market research. This could be done in a number of ways:

  • the business could insert a clause in staff contracts by which employees consent to calls and e-mails being monitored or recorded 

  • the call operator could ask outsiders at the start of a call whether they consented to their call being monitored or recorded 

  • the business could begin calls with a recorded message stating that calls might be monitored or recorded unless outsiders requested otherwise.

If a business makes an interception without the correct legal authority, the sender or the recipient of the communication will be able to obtain an injunction or, if they can show that they suffered a loss because of the interception, sue for damages.

October 2000

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