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Secretly prying into people's lives is offensive

THE DOMINION POST - Saturday 30 JULY 2011

The world wide web revolutionised communications in the 20th century and continues to do so rapidly. It has radically changed the way we access information and correspond with each other.

Rupert Murdoch and the News of the World scandal may have an impact on the way the free flow of information between people occurs. Rupert Murdoch claims that he did not know details of the illegal hacking that his organisation indulged in. Regardless, what has happened is likely to have far reaching consequences. The scandal has created something of a perfect storm which will likely see legislative change in many Western countries.

There are several social and professional implications of the News of the World scandal. No doubt competitive media like the BBC and the Guardian, amongst others, take a certain measure of delight in seeing Murdoch’s papers being exposed for their conduct.

The general public may not mind too much when celebrities or even politicians have their phone or electronic communications hacked. There is a certain expectation that people in the pubic eye may have more limited privacy than those who go about their lives in private. However, when the cell phones of victims of violent attacks are hacked and police are paid for information, the perception is that news media involved are crossing the Rubicon. People are revolted by this conduct, and now there is a wave of revilement against such practises from the general public. Governments and Law Commissions will be looking at appropriate protections against this practise. This will likely occur here regardless of whether or not the New Zealand media offended at all.

The scandal brings about interesting considerations in an employment context. In the first place, it is self-evident that employees of the News of the World paper are powerless over the tactical decision of their employer to shut down the newspaper. Another interesting feature of the scandal is the portrayal of the relationship between Rupert Murdoch and his former Chief Executive Rebekah Brooks. The pair have displayed significant loyalty to each other throughout the saga. In addition, the “hacking” issue gives rise to questions of how far an employer can go to monitor staff activity.

The employment issues that have arisen will be of interest to Boards of Directors and Chief Executives.

In particular, the interesting relationship between Murdoch and Brooks highlights issues around professional distance between a Board and its Chief Executive, and a Chief Executive and their subordinates.

It is important for a company to have a Board that exercises independent political judgement for the benefit of shareholders. Where the relationship becomes too close, judgement often goes. This is what appears to have happened between Rupert Murdoch and his lively Chief Executive. They have defended each other well into an unfolding nightmare and the split came far too late. It is important that Boards and their Chief Executives are able to communicate effectively and work efficiently together. However, blurring the line into personal loyalties can harm healthy judgement.

In terms of privacy in the workplace, the way News of the World obtained its news is of significance. We are told they hacked into private communications of people in the community, whose stories would sell the paper. The Royal Family have been mentioned, the victims of terrorist bombings have been mentioned, indeed a total of more than 4,000 people are spoken of as having their private communications secretly intercepted by News of the World reporters over the years.

What about the monitoring of staff communications in employment today? Can employers ‘hack’ or dig into employees’ activities without their knowledge? What if an employer wants to monitor its employees by using modern technology? It is now relatively easy with technology to track a particular worker’s every move. This can occur through video surveillance, monitoring landlines and mobile phones, emails, internet use, company vehicles, travel history, and the hacking of Facebook and Twitter accounts. This surveillance can go unnoticed. With modern technology the employer can know an enormous amount about its employees. The question is whether seeking this knowledge in a covert way is lawful, and whether it can be considered fair and reasonable.

The approach of the Courts in New Zealand to covert monitoring of employees is that it is intrusive and done purely out of curiosity or nosiness, will likely be in breach of the Privacy Act. It may also amount to a breach of the employer’s obligation of good faith, and of the obligation to behave in a way that promotes trust and confidence.

Where there is a genuine basis for covert monitoring our Courts and the Privacy Commissioner accept that it can be fair and lawful. For example, where theft is occurring in employment, and the employer reasonably believes that the only way it can catch the culprit is covert surveillance, this will be considered lawful. The Privacy Commissioner determined in a case involving covert surveillance in an employee changing room that “it was not reasonably practicable to draw the fact of filming to the complainant’s attention as the video surveillance was intended to film covert and unlawful behaviour. It would have prejudiced the purpose of collection if the complainant had been told that he was being filmed prior to the surveillance taking place. Non-compliance with [the Privacy Act] was necessary to gain sufficient evidence of theft to enable the prosecution of the offender before a Court”.

This sentiment was reflected in a case involving Yvonne Logan and a company operating health stores in Hamilton.

Ms Logan argued that her employer’s use of video surveillance without her knowledge was unlawful and unfair. The Employment Relations Authority held that video cameras set up in response to genuine concerns about stock did not infringe on staff or customer privacy.

There are many lessons to be learnt from the News of the World scandal and the details that continue to emerge. Spare a thought for the employees who find themselves without a job, largely because of conduct sanctioned by management in the upper echelons of the employer company. So often in life we learn the lesson that the honest and truthful approach is the better one.

Surreptitiously prying into people’s private lives is offensive. In New Zealand, employers must bear in mind that it is generally only if there is a significant justification for covert surveillance that it will be accepted by our courts. I am sure readers will agree we are blessed to have our institutions take such an approach. It is now time for the laws they enforce to be strengthened, especially outside the employment relationship where protections are weaker.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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