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Posted on May 21st, 2014 by Barry Collins

Your right to a private life extends to your email

Man at screen

This may cost me some friends and a place on Germaine Greer’s Christmas Card list, but I have some sympathy for Richard Scudamore, the Premier League chief executive who’s been castigated for sending sexist emails.

A friend of mine is a largish cheese at a well-known broadcasting company. Recently, we were arranging a curry night with some pals over email, exchanging the normal “banter” that passes between a group of friends who’ve known each other for years, when said broadcasting exec suddenly felt the need to inform us that – like Scudamore – his PA had access to his inbox.

There was nothing particularly off-colour in the email exchanges, certainly nothing comparable to the comments that have had Scudamore dusting down his CV this week, but the tone of the conversation changed immediately. Dialogue that would be utterly harmless between friends who’ve known each other since university, who know each other’s sense of humour and when someone is being ironic, was suddenly unacceptable when his PA was potentially reading the exchanges, too.

The alternative is living a nightmarish Orwellian state, where no conversation is private and every utterance is sanctionable

My work email has never (to the best of my knowledge) been privy to someone else’s eyes. But I can say with absolute conviction that – read in isolation and stripped of context – some of the emails I’ve sent and received from friends and colleagues could be regarded as offensive, sexist and potentially even racist. I trust my correspondents know that I am (with the regular exception of offensive) none of those, but if those isolated emails were suddenly produced in court or at a disciplinary hearing, I’d need a hell of a lawyer to prove otherwise.

Email, to my mind, comes with an implicit expectation of privacy. Yes, Scudamore was foolish not to moderate his language in the knowledge that his PA had access to his inbox, and he was perhaps even more foolish to hold those views in the first place – although, stripped of context, I’m as reluctant to pass any moral judgement on Scudamore as I would be for someone to pore over the contents of my inbox.

I find it richly ironic that in the same week the EU affirmed our right to be “forgotten” on the internet, the general consensus is that someone’s private email exchanges are considered fair game.

Article 8 of the Human Rights Act states that there should be “respect for privacy when one has a reasonable expectation of privacy”. I’d argue that Scudamore had a “reasonable expectation of privacy” in his correspondence with friends and colleagues, and that no matter how offensive his comments were, he shouldn’t lose his job over them.

The alternative is living in a nightmarish Orwellian state, where no conversation is private and every utterance is sanctionable. And that’s a lot worse than having a man who compares women to double-decker buses running football.

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24 Responses to “ Your right to a private life extends to your email ”

  1. Thomas Says:
    May 21st, 2014 at 1:24 pm

    I can’t fault Article 8, but there does seem to be a flaw in the way you want to apply it here. I agree wholeheartedly that personal email should be private. But if a messages is sent to a company-provided mailbox how is anybody (who has authorisation to access that mailbox) to know that it’s personal without opening it first? So how can there be a “reasonable expectation of privacy”?

    If I receive a personal letter I expect it to be sent to my home address. If I receive a personal email I expect it to be sent to my own mailbox. I don’t write personal letters on corporate letterhead and as far as I can see any employer has a legitimate interest in what’s being sent to and from its addresses, whether they be postal or electronic. I would, however, scream very loudly if they insisted on seeing the contents of my letter box at home.

     
  2. Paul Says:
    May 21st, 2014 at 3:56 pm

    Couldn’t agree more with Thomas. A personal inbox is a completely different ball game to a work-provided one. I assume anything I send or receive through my work e-mail to be read by my boss or his boss and write messages accordingly.

     
  3. Geoff Airey Says:
    May 21st, 2014 at 4:35 pm

    I couldn’t agree more with Paul and Thomas. When you send an email, it comes from the Company’s domain. Therefore you are both representing and representitive of of the company at that time.
    Mail address is one equivalent.
    A better analogy is that If you go out with mate and insult someone, it is personal and couldn’t be used in a disciplinary. If however you are out with your company at a work event and you insult someone, you’re bringing your company into disrepute and it could be used in disciplinary.
    Far too many people think of the email address provided by their work place as ‘their email address’ for use for whatever they want, when it provided for business purposes. Better training would make this clear.

     
  4. Bob Hallewell Says:
    May 21st, 2014 at 6:21 pm

    Given that *all* company emails are official company communications, Barry’s friend (”the largish cheese in a broadcasting company”) was absolutely right to tone it down.

    Vicarious liability means the company is liable for the actions of its agents (employees), so our standard position is:

    “If you would not be happy for your email to be photocopied onto company letterhead paper, with your signature, then photocopied 50,000 times and fly-posted all around the office and town forever… then don’t send it.”

     
  5. Barry Collins Says:
    May 21st, 2014 at 6:30 pm

    Thanks for three well-argued comments.

    I still think that, even on a work account, there is a reasonable expectation of privacy, even though it’s not as clear cut as it would be on a private account. Many of the company email policies I’ve seen, and been subject to, make a provision for personal email.

    The fact his PA had access to his inbox certainly weakens his expectation of privacy further, but doesn’t eliminate it entirely, in my view.

    Barry Collins

     
  6. adolfobama Says:
    May 21st, 2014 at 7:04 pm

    My earlier comment didn’t register for some reason. Just testing.

     
  7. adolfobama Says:
    May 21st, 2014 at 7:05 pm

    Paul and Thomas make a reasonable point, but Scudamore isn’t being taken to task for not using his personal email address. He is being taken to task for the content of his emails. If similar emails from his personal email address had somehow been leaked, then I don’t see that he would be getting treated any different from how he is being treated now. The crux of what Barry is saying, is that the emails were of an informal, private nature and should be judged, or not judged to put it more aptly, in that context.

     
  8. Julian C Says:
    May 21st, 2014 at 9:22 pm

    There has to be a distinction between personal and private domains, emails, social media etc. I have a work & private emails, I also separate Linked-in (work contacts) from Facebook (family and actual friends & acquaintances). There are a few overlaps, but the behaviour, tone and use of each is specifically differentiated.

    As a matter of interest,in the absence of a publicly published FA email policy how many people have checked out the FA’s Website terms of use and privacy pages? Read them then consider what their email policy might be!
    * http://www.thefa.com/public/terms
    * http://www.thefa.com/public/privacy

     
  9. Julian C Says:
    May 21st, 2014 at 9:23 pm

    ^^ (particularly section 5 of the terms of use)

     
  10. Looper Says:
    May 22nd, 2014 at 2:39 am

    No Barry. There is not any expectation of privacy. In every case the company has absolute right of access to all communications made using their hardware, software and services provided. It is at the company’s discretion whether your personal communication is private or not, not at your discretion, since you do not provide it or pay for it, you should be merely using it for work purposes. If you expect any privacy communicating with work colleagues, then either take it offline, or use private e-mail accounts.

     
  11. Steve Says:
    May 22nd, 2014 at 7:01 am

    Imagine our surprise when my partner (also a PA) found out that her boss was reading her emails.

    She has an electronics engineering degree and was asked to have a look at a problem with his laptop’s email (this is a small business).

    She then saw that her – and other employees – emails were being received by the boss – some read, some not.

    We now exchange personal emails via her webmail account.

     
  12. Michael Langley Says:
    May 22nd, 2014 at 7:03 am

    I agree. Privacy should extend to email, SMS, and cellphone. I think we are losing more and more privacy everyday.

     
  13. Paula Says:
    May 22nd, 2014 at 9:21 am

    Good point about privacy (a letter with a stamp on it is the property of the Queen until the recipient gets it and therefore unlawful for anyone else to open)…

    … but why on earth are you using work email for non-work purposes? I stopped doing that the minute I got a hotmail account back in the late 90s, before the question of whether your boss/colleagues could read it ever came up.

    The boundaries work both ways. You wouldn’t want people at work knowing what’s in your bank account, so you don’t bring you statements in and leave them lying about. So why use your work email for anything other than work when the risk is obvious?

     
  14. Nick P Says:
    May 22nd, 2014 at 9:40 am

    Sorry, I agree with Looper, Paul & Thomas – If you want an expectation of privacy, use your personal email account. We have a simple rule at my office – if it’s on a company machine, it’s company property. I advise all new starts of this and advise them to apply the “would I leave it lying on my desk” test.

     
  15. Peter Says:
    May 22nd, 2014 at 10:45 am

    I think the rule ‘never put anything in an email that you aren’t happy for the world to see’ works well for private or work emails. Apart from deliberate snooping it’s very easy for things to be inadvertently forwarded to the wrong person / the whole office.

     
  16. Chatan Says:
    May 22nd, 2014 at 1:21 pm

    Private emails in a corporate space in a no-go. Even if your company agrees a level of privacy, it can still be gathered by HMRC/government for legal purposes.

     
  17. Paul Goldstraw Says:
    May 22nd, 2014 at 2:41 pm

    Agree that there’s no fundamental right to privacy when using work email, and I also try to minimise what is sent through mine. However I think there’s a big difference between my boss reading my email, which, given the content, might lead to a bad working relationship, a disciplinary or even termination, but that privacy is still upheld between me and my boss. If he made what I’d said public, that’s where I feel it becomes an issue.

    In my opinion, I don’t see this as any different to BT writing to a customer to warn them against piracy, something else that’s been in the news recently. The user is using their network for illegal activities, but do we all agree it would be unacceptable for someone at BT to leak the fact that customer had been pirating content? There is still an expectation of privacy even when you know others can see what you’re doing, it’s just that the circle of privacy goes from the person in question to anyone with access.

    I accept there is a difference in my analogy – Scudamore was an employee of the organisation, he’s being paid to do a job. BT are not paying the customer to use the network, it’s the opposite. However where privacy is concerned I don’t see that making a difference

     
  18. Tim Says:
    May 22nd, 2014 at 8:35 pm

    I think the real issue here is the not privacy, but the standards that are being applied. We have now entered the age of the internet witch hunt. Sadly to many of the proponents of tolerance and equal rights seem instead to have turned into what the purport to hate. The thought police are well and truly with us.

     
  19. David Wright Says:
    May 23rd, 2014 at 10:40 am

    In Germany the company has to hold all business relevant emails for 10 years in unchangeable form. That means that the users inbox isn’t suitable, so they are stored in a proper archive (Exchange since 2007 does this). The problem is, how do you define “business related”? And Exchange stores every email that comes in or goes out.

    Therefore, generally, you are not permitted to send any personal emails from your business account and friends shouldn’t send emails to that account.

    In essence, when you take a job, you usually agree, here, that you will not use the email for personal use or that if you do, you are aware that the company will be storing copies of it and you waive your rights to privacy on those emails.

    The archives cannot be accessed by normal employees, but upon receipt of a court order, for example, the Data Protection Office would have to dig through the archive and pull out all email relevant to that court order.

    And, theoretically, the company can assign somebody to look through your mailbox to look for business relevant emails if you are ill, for example.

     
  20. richtea Says:
    May 24th, 2014 at 4:36 pm

    Scudamore is entitled to any views he may have. Everyone else is entitled to the same. An indiscrete PA should be sacked; it was a blunder to have hired a snitch in the first place.

     
  21. Peter Connolly Says:
    May 27th, 2014 at 8:24 pm

    Even back in 1996, we required all employees to sign a contract stating their understanding that the email system is not private, and that all communications on it belong to the company. Once a similar contract has been signed, there is no expectation of privacy.

     
  22. Aspectcarl Says:
    June 5th, 2014 at 9:19 pm

    I don’t get it… Most companies have a communications policy and users are reminded of it when they log in. But if a private email must be sent why not prefix the subject field with . It doesn’t prevent anyone from reading the message but it flags that the content is “private”. It might be a legitimate private company message intended to convey a business matter that the sender wishes to remain private. Anyone reading a private message who is not a recipient is knowingly intruding on a private communication.

     
  23. Aspectcarl Says:
    June 5th, 2014 at 9:20 pm

    The prefix got stripped in my post!!

    Why not prefix the subject with “private”

     
  24. martin Says:
    June 10th, 2014 at 10:32 pm

    Many good points made about the expectation (or not) of privacy, but I think Tim (18) has hit the nail on the head.

    We should distinguish between those who GIVE offence, by sending emails to those who would find the content offensive, and those who TAKE offence, by reading emails never addressed to them in the first place.

    Our privacy ought not to be something we have to guard against intruders, it ought to be a boundary over which the uninvited do not cross, or cross only at their own peril.

    Some day they might find a way to read minds. Then we will all be condemned by the thought police.

     

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