Case Law and Statutes from England and Wales - Essay Example

Background Jasper works for the Western Bank in its information systems department as a network security systems adviser. Jasper got a little bored one day and decided to read the e-mails of other staff (his duties do include controlling the server which deals with e-mails). The Bank has become suspicious about Japser’s activities and want to intercept his communications etc to see if he has been intercepting e-mails. Jasper has other problems. He has failed to ensure the security of the server (which is part of his duties) this has meant that hackers from outside have breached company security and taken data relating to clients including bank account details. In his spare time, Jasper has also been hosting a web site from the Bank’s server which advocates violence and the political over throw of elected government in the UK. The Government Security services discover Jasper’s web site and want to spy on Jasper’s activities while he is hosting it, believing it will supply them with useful intelligence. Task one Does the bank have the right to intercept Jasper’s communications? Does the Government have the right to intercept Jasper’s communications? Justify your answers with legal substantiation. 5 marks You must use case law and statutes from England and Wales although comparisons with other jurisdictions is permissible. Academic articles may also be useful as additional authority. Task two Critically analyse any one of Parliament you have used to justify task one. Could this area be improved through further statutory regulation or would you advocate a different approach? One of the main issues that are raised in the above scenario is the issue of privacy. In order to be able to determine the legitimacy of the employers’ interception of Jasper’s emails it is necessary to consider the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights 1950. It is also necessary to examine the rights of the government to be able to order the interception of emails. In this particular case justification could be based on issues of national security since Jasper is a hosting a website which advocates overthrowing the elected government and advocates violence. This will involve an examination of the Police and Criminal Evidence Act 1984 and the Regulation of Investigatory Powers Act 2000. This will also require an examination of the Data Protection Act 1998. In examining the rights of the employer to intercept email the issue of personal freedom is challenged. Craig (1999)1 was concerned that allowing employers to conduct electronic surveillance of employees through intercepting their emails could allow them access to private information about the employee, even if this was not the intended purpose of the monitoring. The case of Copland v United Kingdom [2007]2 demonstrates this issue nicely. In this case the complainant alleged that Article 8 of the European Convention on Human Rights 1950 had been violated by her employers monitoring of her email and internet usage as well as her telephone calls. The respondent argued that respect for her private life had not been violated and even if this were to be the case they were justified in their actions. At the hearing the court held that there had been a violation of Art 8(1) making reference to the case of Halford v United Kingdom (20605/92) [1997]3 which dealt with the interception pf telephone calls from a business number. The court stated that emails should be treated in the same manner and as the complainant had never been warned that her calls and emails were subjecting to monitoring she should be able to reasonably expect that any calls or emails she sent would be private. The above case therefore seems to suggest that interception of communications made by an employee would be regarded as a violation of Article 8 and would give grounds for a claim against the employer for the interception. Baniser (2000)4 argued that an employer abandons the right to privacy once they are at work as they are no longer on ‘private time’ and that the employer has a right to supervise the activities of their staff. Westin (1967)5 disagrees with this notion stating that there is a basic human need for privacy and this should be respected both in and out of the working environment. Conlon (1996)6 believes that ‘total surveillance’ effectively eliminates all privacy rights. The situation is slightly different when it comes to deciding on the right of the government to intercept emails. Following the recent terrorist attacks there has been a move towards the acceptance of the right to monitor the activities of suspected terrorists. In this particular case as Jasper has a website aimed at overthrowing the elected government as well as encouraging violence it could be successfully argued at court that the government has the right to intercept communications on the grounds of national security. In the case of R (on the application of NTL Group Ltd) v Ipswich Crown Court7 the appellant asked the court to rule that they were under no obligation to store the emails of their clients in order to pass these to the Suffolk police to aid their investigation. The Suffolk police had instructed NTL under s9 of PACE 1984 to intercept the emails of a particular client but they had refused stating that all such communications were only held for one hour and that they were under no obligation to hold them any longer. NTL contended that to do as they had been asked would amount to a breach of s1 of the Regulation of Investigatory Powers Act 2000. The court held that as the request had been made under s9 of PACE 1984 the interception was permissible and would not amount to a criminal charge of intercepting a communication under the 2000 Act. From the above it seems that there are certain circumstances where the courts will allow interception of communications especially in the case of government departments such as the police. In order for the courts to reach the conclusion that the interception is justified they must be satisfied that the interception is ‘in accordance with the law’. In three cases where covert surveillance was used in order to secure a conviction the court held that the interception had not been in accordance with the law and that the police had thereby violated Article 8 of the ECHR8. The first case to consider the application of Article 8 was Halford v United Kingdom [1998]9. The European Court rejected the contention made by the UK government that surveillance in the workplace did not interfere with the private lives of their employees. In this case the judge ruled that “ telephone calls made from business premises as well as from the home may be covered by the notions of ‘ private life’ and ‘ correspondence’ The court stated that they could not find that any warning had been given to the appellant that her calls might be intercepted. The court felt that it was reasonable for her to expect that any calls she made would be private. The court also stated that as the appellant had 2 telephones, one of which was for her own private use, it was reasonable for her to assume that any calls made from this phone would be private. Although privacy of the individual is important there are occasions where covert surveillance is justified. The Regulation of Investigatory Powers Act 2000 can have the effect of prohibiting the police and others from exercise the right to intercept emails. This can be dangerous especially in the recent climate of terrorist attacks, as the police might be prevented from carrying out covert surveillance of a suspect on the grounds that to do so would be a breach of the rights of the suspect to a private life. In order for such surveillance to be authorised the reasons for the proposed surveillance must be disclosed to the Secretary of State who has the power to issue a warrant. Under s5(2) of the 2000 Act the Secretary of State can only issue such a warrant if he believes that the need for the surveillance is proportionate to what is hoped to be achieved by the surveillance. The Secretary of State will be required to consider whether such information could be obtained by alternative methods and should only authorise such a warrant if he deems it to be necessary to achieve the desired outcome. It has been argued that it is essential that a warrant must be obtained in such circumstances otherwise the government would not be subject to any form of regulation of their activities. The removal of the requirement of a warrant could mean that all communications of all individuals could be subject to interception. In the case of Lewis v United Kingdom (2004) the applicant was able to prove that the covert surveillance he had been subjected to was such that it was impossible for him to obtain a fair trial. The courts upheld this assertion and the conviction against the appellant were quashed. The case of R v Stanford [2006]10 highlighted the dangers that can be encountered where monitoring is in general use in the workplace. In this case the accused became the first person to be convicted of unlawful interception under the Regulation of Investigatory Powers Act 2000. The accused used a ‘mirror wall’ program on the companies computers which automatically copied emails sent to the company chairman to a hotmail account of a private detective. The accused was able to obtain many personal details of the company chairman through these actions. The aim of the accused was to use this as evidence against the company chairman to discredit him in the hopes that it would force him to resign. In answer to the allegation of unlawful interception the accused attempted to rely on his right to intercept such emails from the nature of his post with the company. This was rejected by the Court of Appeal with Lord Phillips declaring that the accused did not have a right of control as he asserted and that this was ‘plainly criminal behaviour’. The above case shows the dangers that can occur where the company operates a monitoring process. Despite this legitimate monitoring still occurs in the especially with regard to call centres. Such monitoring is legitimized under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) which is included in the Regulation of Investigatory Powers Act 2000. These regulations instruct when monitoring will be considered to be lawful. Monitoring of either email or telephone calls can raise questions of legitimacy in terms of breaches of the Data Protection Act 1998. To address these issues the Information Commissioner issued guidelines that were included in the Employment Practices Code. These guidelines instruct employers in the correct procedure for the monitoring of telephone calls so as to avoid charges being brought for data protection breaches or for allegations of violation of the right to privacy. The Code makes it clear that any such monitoring should only be carried out by someone of managerial status. This was applied in the Stanford mentioned above, and it was on this basis that the court found that he did not possess the necessary status to be carrying out such monitoring processes. Businesses that choose to monitor the communications of employees in the workplace should adhere to the recommendations of the information commissioner so as to avoid breaching the law. The above case should serve as a warning to companies and businesses to ensure that any monitoring used in the workplace adheres to the Code and that the person responsible for the monitoring is of managerial ranking. In recent times the Home Secretary has extended the list of groups of people who are allowed to see the information that has been collected under the Regulation of Investigatory Powers Act 2000. When the Act was initially passed there were only 9 groups that were entitled to information gleaned in this manner now the number has risen to 79211. Many individuals have expressed concern as the powers conferred by the Act allow the government to demand an internet service provider to intercept customer’s communications covertly. The government can also instructs internet service providers to fit equipment which will allow them to carry out surveillance on a customer’s usage. Much of the impetus for the passing of the Act came as a result of an increase in terrorism and internet crime as well as a huge increase in online paedophilia. The Chairman of the House of Commons expressed is concern earlier in 2008 stating that he felt that the Act was being used for ‘petty and vindictive’ cases12. Although there does need to be the ability to carry out such covert surveillance in order to prevent crimes from being committed the RIPA does not seem to fully achieve this. The wording of the Act is slightly too vague as the main requirement for the relevant authority to be able to resort to covert surveillance is that it is ‘in accordance with the law’. This criterion can in some instances be too easy to satisfy and therefore could lead to improper use of covert surveillance. From the above it can be concluded that there are some instances in which covert surveillance is essential, however, the present legislation fails to properly control the usage of covert surveillance and is open to abuse. The privacy rights of individuals are directly affected by employers using covert surveillance to monitor their activities at work. Despite the fact that quite a few people have had their privacy invaded in this manner the courts still do little to protect them. There are only a handful of cases that have been brought before the courts and very few have received any significant punishment for their breach. There needs to be a tougher line taken against employers that violate Art 8 so as to deliver a message to other employers about the illegality of their actions. Although covert surveillance for criminal offences has to be authorised by the secretary of state there is no such requirement in the workplace and often such monitoring is conducted without the employee ever knowing that they have been subjected to this. Despite the powers to prosecute those guilty of interception the courts very rarely entertain such claims and those that they do entertain very rarely attract a custodial sentence. The courts should be more sensitive to the distress such an intrusion can cause to an individual and should ensure that the punishment fits the crime. References J. Craig, Privacy and Employment Law (Oxford: Hart Publishing, 1999) at 19 Copland v United Kingdom [2007] 45 EHRR 37; Times April 24 2007 Halford v United Kingdom (20605/92) [1997] IRLR 471ECHR D. Banisar, Privacy and Human Rights: An International Survey of Privacy Laws and Developments (Washington DC, Electronic Privacy Information Centre; London: Privacy International, 2000) at 47. A. Westin, Privacy and Freedom (London: Bodley Head, 1967) at 7. K. Conlon, ‘ Privacy in the Workplace’ (1996) 72 Chi-Kent L Rev 285 at 293-4. R (NTL Group Ltd) v Crown Court at Ipswich [2002] EWHC 1585 Admin Khan v United Kingdom (2001) 31 E.H.R.R. 45 Lewis v United Kingdom (2004) 39 E.H.R.R. 9 Chalkley v United Kingdom (2003) 37 E.H.R.R. 30 Halford v United Kingdom (1998) 24 EHRR 523 R v Clifford Stanford [2006] EWCA Crim 258. Gordon Rayner and Richard Alleyne: Council spy cases hit 1,000 a month. The Daily Telegraph, April 14, 2008 Read More