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Blog posts tagged privacy
Has Facebook made a fool of you? Could the EU come to your rescue?
April 12, 2011
In the good old days men joined the French Foreign Legion “to forget”; perhaps a doomed love affair, an unhappy marriage, gambling debts or any manner of unpleasantness.
No longer is that possible with Facebook (and other social platforms) recording every man and woman’s indiscretion for posterity. In similar vein, Twitter is constantly criticised for being inane - who wants to know what you had for breakfast? Social media platforms expose every aspect of our lives for inspection, transmission, discussion and, sometimes, ridicule.
The sheer complication of privacy settings on Facebook, where openness rather than discretion is the default setting, mean that our private thoughts, comments and, alarmingly, photographs, all meant for a very select audience of “friends”, can be disseminated far and wide. Forwarded on in a fit of giggles, one lone Facebook indiscretion could mean that Andy Warhol’s prediction of “15 minutes of fame” could be coming to you, and soon. Unfortunately.
Your sudden fame will not just be limited to quarter of an hour: once out in the cloud, it will be preserved for posterity. That poses a further problem: where exactly is your data being processed? It may well be outside Europe, making it very difficult to object to photos etc being removed.
But not if the European Union has its way. The EU Commission has recently flexed its muscles and published proposals that would make Facebook “forget” all those shaming photographs of you lying in a gutter dressed as a nun after ten pints and a vindaloo.
As reported in The Guardian, EU Justice Minister Viviane Reding announced an intention to unveil a package of proposals shortly which will force social networking sites to have high levels of privacy as the default setting. And users will get the right to withdraw their consent to their information being processed. In other words, everyone living in the EU will be given the “right to be forgotten” online, and all their personal material removed. Failure by a social networking platform, even one based outside the EU, will lead to legal proceedings and sanctions being imposed by national privacy watchdogs.
It is also proposed that the companies will have to prove that they need to retain any information they stored, taking the burden off the individual to prove why it should not be processed.
It’s a very welcome initiative, although we will have to wait and see what the proposals look like when published. It must be right that people can demand social networking sites remove embarrassing information about them, especially when it can rear its head several years later and prejudice a job application.
What remains clear, however, is that law on privacy and social media is still very confused. How an individual’s right to privacy can be protected on a medium that is fundamentally dedicated to sharing and openness is probably the biggest issue facing legislators and lawyers over the next few years.
More fundamentally, these new proposals are an attempt by a supra-national organisation to take control over a phenomenon (how else can you describe Facebook et al?) that defies national boundaries in its scope and reach. I think the EU is to be applauded for pursuing this agenda (are you reading Nigel Farage?)
Now, there was something else I had to do but can’t quite recall what it was...
Michael Scutt, Dale Langley & Co
Can my employees secretly tape a meeting with me?
May 04, 2010
The scenario is this: an employee is summoned to a disciplinary meeting with the employer to discuss an allegation of misconduct. The employee, not trusting that the employer’s minutes of the meeting will be an accurate reflection of what was said, covertly records the meeting. She is dismissed and then decides to use the recording as evidence at the hearing of her unfair dismissal claim. Can she do so? It is a tricky issue that crops up fairly regularly.
Ian Mann, barrister of 13 King’s Bench Walk, Temple, explains the case that says, more or less, yes. In a meeting with the Hertfordshire school she worked at as a teaching assistant, a Mrs Dogherty secretly recorded not just the “open” part of the meeting she attended but also the “private” session after she was asked to leave the room whilst the school governors considered her fate. Her contract of employment did not forbid covert recordings of meetings.
In court, the school argued that the governors’ rights under European Human Rights legislation had been infringed. This was rejected by the Employment Appeal Tribunal (EAT). The central issue, as far as the recording of the “open” part of the meeting was concerned, was to consider whether the evidence on the tape was relevant to Mrs Dogherty’s unfair dismissal claim. It was and so was allowed to be heard.
As Ian Mann points out, this is not new law – the EAT relied on a 2004 case as confirmation. Furthermore, English courts are normally more interested in the quality of the evidence than in how it was obtained. Put another way, does the end justify the means? In this case it did, but only as far as the “open” part of the meeting.
A different result applied to the “private” session – when Mrs Dogherty had been asked to leave the room for the governors’ private discussion. The recording of that part of the meeting was not allowed in evidence.
This is a difficult issue for employers. How should you approach it? Start by drafting or amending your contracts of employment and employment handbooks to ban any covert recording of disciplinary meetings. If, as an employer, you face conducting a disciplinary meeting, state that you do not agree to the meeting being recorded and ask if the employee is in fact doing so. If the employee does so and lies, it could affect their credibility. However, raising recording as an issue can be a double-edged sword; there is no reason why, if an employer intends to conduct proceedings fairly, they would not agree to a tape being made. And it is likely that the file will be allowed in evidence anyway.
You could also consider arranging your own recording (not covertly, of course) thus meaning that there is no need for the employee to make their own copy. Of course, this also means that you have to conduct the meeting fairly. An Employment Tribunal is likely to be impressed by an employer who tapes disciplinary meetings because it demonstrates openness and confidence in dealing with the meeting. There can also be no argument in Tribunal as to what was said at the meeting. It is of course important to ensure that whether taped or not, good notes of the meeting are taken, and that whoever is present in the meeting has taken legal advice beforehand and is aware of what ought and ought not to be discussed at such meetings.
- I am greatly indebted to Ian Mann, Barrister of 13 King’s Bench Walk, Temple, for supplying a copy of the recent case of Chairman and Governors of Amwell View School v Mrs C Dogherty UKEAT/0243/06/DA which deals with the issues succinctly.
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