Ad III: Monitoring of staff email and internet use

The Dutch DPA formulated 16 rules of thumb for employees to be able to make an appropriate and meticulous policy on the monitoring of computer use.

Rules of thumb for monitoring the use of e-mail and the internet

General

1. Treat business online in the same manner as offline.

2. Set up clear rules with the agreement of the works council.

3. Publish the rules in a way that is accessible for the employee.

4. Determine to what extent private use of the facilities is permitted.

5. Make prohibited use impracticable as far as possible through the use of software.

6. Make reports and user statistics anonymous.

7. Take into consideration the system back-ups.

8. Guarantee the integrity of the system manager.

9. Discuss detected behaviour with the person concerned as soon as possible.

10. Grant access to the data.

11. Periodically evaluate the rules.

E-mail and internet

12. Try to separate business and private mail and avoid monitoring private mail wherever possible.

13. Limit monitoring to the objective formulated. Provide for a relevant control mechanism.

14. Minimize the monitoring of observance (tailored work).

15. Limit the logging of network use to the data traffic. Do not save the logged data for any longer

than is necessary.

16. Avoid privileged information from members of the works council and company doctors in

electronic messages.

From recent case law the following can be derived:

There is less distinction between personal life and work life and therefore reasonable personal use of internet and email is normally allowed. Inspection must be proportionate within limits of the purpose of the inspection. There must be a concrete suspicion or other good reason to inspect email (other than random monitoring). Confidentiality of the mail (art. 13 of our Constitution) is found applicable on email correspondence using company email communication means. Although policies / guidelines are not obligatory in case law judges find the existence of policies / guidelines relevant and in specific matters the existence of clear guidelines can strengthen the employers position.

For more info about this subject please contact mr. Vincent Rutgers or mr. Marten van Hasselt.

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