A recent case in New Jersey, although not binding in the UK, highlights the importance of clear electronic media use policies within businesses to set clear parameters on what is, and is not, expected of employees in terms of personal internet usage.
An American employee, Marina Stengart, was employed as a nursing manager by the Loving Care Agency Inc, one of the leading providers of home care nursing and health services in the US. In the course of employment, Loving Care provided Ms Stengart with a laptop, to be used by her to perform her employment duties. Ms Stengart subsequently used that laptop to send and receive e-mails to and from her lawyer, through her personal, password protected, web-based Yahoo e-mail account.
Ms Stengart then left her employment with Loving Care and "filed a lawsuit" against her employer for constructive discharge because of a hostile work environment, retaliation and harassment based on gender, religion, and national origin in breach of the New Jersey Law Against Discrimination.
In preparing their defence to the action raised by Ms Stengart, Loving Care hired a computer forensic expert to recover all files stored on the hard drive of the laptop, including the personal e-mails from and to Ms Stengart's Yahoo account. They then attempted to use the information contained within the e-mails to support their defence to the constructive dismissal claim. In response, Ms Stengart's lawyer demanded that the communications between him and Ms Stengart, which he considered privileged, be identified and returned. The question to be determined was whether an employee could expect privacy and confidentiality in personal e-mails to and from a solicitor, which were sent from and accessed using a computer belonging to an employer.
Despite Loving Care's e-mail use policy stating that occasional personal use was permitted, it was held that the policy was vague and did not address personal e-mail accounts at all. The policy did not warn employees that the contents of e-mails from personal e-mail accounts could be stored on the hard drive and could be forensically retrieved. Accordingly, it was held that Ms Stengart, "could reasonably expect that email communications with her lawyer through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them. By reading e-mails that were at least arguably privileged and failing to notify Stengart promptly about them, Loving Care's counsel breached RPC 4.4(b)." [Note that RPC 4.4 provides for respect for rights of third persons].
Employers in the UK should take note and ensure that their electronic and media use policies are clearly and accurately drafted and up to date. This is more important than ever given the ever rapid expansion of e-mail as a primary means of communication, not to mention the explosion in popularity of social networking sites. On the other hand, employees should ensure that they are aware of exactly what they are, and are not, permitted to do in terms of such policies to avoid any private communications potentially finding their way into the hands of their employer. If, as an employee, you are discussing matters of a private nature, use the telephone or e-mail from your blackberry or mobile (assuming of course this hasn't been provided to you by your employer!).