Tag Archives: Legal

MONITORING AND DATA PROTECTION IN THE WORKPLACE

Regulation of Investigatory Powers Act 2000 (RIPA)

Came into Force October 2000 – Abogado de accidentes

Purpose is intended to implement article 5 of the Telecommunications Data

Protection Directive (No 97/66).

Communications As far as the interception of internal communications is concerned,

Interception unless there is (expressly or by implication) consent (by both parties to

the communication) to the interception, a criminal offence may be

committed. An employer can only lawfully intercept external

communications without consent if it complies with the provisions of the

Telecommunications (Lawful Business Practice) (Interception of

Communications) Regulations 2000, SI 2000/2699.

The Regs The Regulations create in effect a number of ‘lawful purposes’ whereby

employers can monitor and record communications between parties

without their consent, providing that the employer has made ‘all

reasonable efforts to inform’ every person who uses the

telecommunication system that their communication may be monitored.

6

Lawful Purposes they include:

1 creating records in case a dispute arises;

2 ensuring compliance with regulatory or statutory rules;

3 customer care;

4 prevention of crime and security against hackers;

5 investigating the unauthorised use of the telecommunications

system.

Data Protection Act 1998 (DPA)

Came into force 1 March 2000

Purpose Under the DPA 1998, privacy attaches to ‘collected personal data’.

What is covered? Protection covers both computer processed personal data if the data was

retrieved ‘by reference to an employee’ as well as paper-based personal

records stored in filing systems ‘by reference to employees or criteria

relating to them’.

Personal Files There are wide-ranging rights for employees to receive copies of their

personal files, to ask for corrections or removal of inaccuracies and to be

told why personal information about them is being kept.

Personal Data The definition of ‘personal data’ appears to be wide enough to cover

appraisals and assessments.

References There is a specific exemption for confidential references.

Processing Data The DPA 1998 applies to the ‘processing of the data’. This covers most of

The routine personnel tasks from the creation of personnel information

to its filing, retention and storage.

Safeguards The Act sets out, by way of stated ‘data protection principles’ some basic

safeguards and controls about data processing. As far as employees

are concerned, these safeguards and controls mean, among other

things, that personal data must:

i. be obtained only for specific and lawful purposes

ii. must be processed fairly and lawfully and

iii. must be kept accurate and up to date.

Sensitive Data There are additional and more severe restrictions on the processing of

‘sensitive’ personal data – this includes data about an employee’s racial

or ethnic origins, political beliefs, physical or mental health, or sex life,

and the commission of offences.

E/ee obtaining details Employees have the right, upon request (and payment of a fee

up to £10), to be told (within 40 days) whether personal data

about them is being processed and, if so, to be told what the

data is, why it is being processed and to whom it is going.

If personal data on one employee contains personal data on

another, that employee’s permission will be needed, or details

may be blanked out.

The Information Commissioner is responsible for freedom of information under the

Freedom of Information Act 2000, which is not due to be

fully in force until November 2005 and has responsibility

for the working and policing of the DPA 1998.

Also includes the publication of codes of practice to

assist those who have control of personal data.

Employment Code In October 2000, the Commission published the first part of the

Employment Practices Data Protection Code. The Code is designed to

assist employers comply with the Act.

DOES CONVENTIONALISM JUSTIFY OUR PRACTICE?

  • What is a conception of law: general interp. Of legal practice as whole in its best light and why on that conception justification for coercion is there. So far looked at Q if it fits our practice, now look if justifies.
  • If – contrary to Dwork. argument – conventionalism did fit our legal practices, would it provide sound justification? Earlier described an argument that it would – “the idea of protected expectation” ( that collective force be used only in accordance with standards chosen and rad through procedures the community as a whole knows will be used for that purpose. —
    • Now must ask – is this ideal sound?

 

Fairness and Surprise

  • Might be thought that this idea is democratic, but confuses two issues: Should people have final say how judge decide cases?
  • Some say conventionalist system best because puts people on fair notice before depriving liberty. But even then, as seen in hard cases, there will be some surprise no matter what decision judges in those cases reach.
  • But is reducing surprise so good? Suggestion that conventionalism reduces surprise must assume then not that surpise is unfair but it’s inefficient/imposes unnecessary risks/frightens people.
  • But conventionalism not justifiable just because surprise not desirable.
  • The political argument for conventionalism is that it protects people as much as possible from surprise. If our sole aim was to prevent surprise – that’d be unilateralism.
    • In criminal law (US/UK), law is very close to unilateralism. In US even constitutional principle (non retrospectively). But private law legal practice not like that – judges very often decide for plaintiff EVEN when according to conventionalism the plaintiff had no legal right to win.
  • Strict conventionalism seems more eligible that unilateralism precisely because it is bilateral. It insists that neither side has right to win. Conventionalist must show and distinguish situations where surprise must be tolerated and where avoided.

 

Convention and Coordination

  • Point of conventionalism not just about protecting from surprise, but more complex goal, achieving social benefits of coordinated private and commercial activity.
    • Need rules that protect harmony of working together. Convention establishes procedures where people an rely on state action.  And where procedures have gaps. People know they have no right to rely on anything. — but if litigation arises, can rely that judges will try to get best rule going forward.
  • This account fits in nicely with agreement by convention and agreement in conviction.
  • Conventionalists defence of bilateralism: “Since it matters to some extent which rule is chosen, we do best to use convention only to protect decisions that some responsible political institution has actually taken on merits and to not include under umbrella decision by default, that is decision no no one has actually made. — If no decision made, court should be free to decide on merits, taking into account strategic consistency.”

 

Conventionalism and Pragmatism

  • Defense of conventionalism we have now constructed has two parts:
    • Wise adjudication consists in finding right balance between predictability and flexibility and,
    • right balance is secured by judges respecting past explicit decisions of political institutions but not enforcing decisions by default in way unilateralism does. (more vulnerable than first point)
  • Second general conception of law: Legal pragmatism: holds that people are never entitled to anything but the judicial decision that is, all things considered, best for the community as a whole, without regard to any past political decision. Radicalness of that mitigated by strategic value of coherence with past decisions.  But, overall, judges should be ready to change  rules in interest of community even if damage to authority of some political institutions.
  • Legal pragmatist different os self conscious conventionalist (who sees someone like McLoughlin recover in virtue of past decisions)
  • Difference:
    • Conventionalist: Judges not see themselves free to change rules adopted pursuant to reigning legal conventions just because on balance a different rule would be more just or efficient.
    • Pragmatist: No conventions of the (just above) sort recognised.
  • Because society so complex: would be foolish to say that any theory a priori is the right one. If anything, better off with pragmatism because it is more adaptive (because if progression shows conventionalist better…it will move us in that direction).
  • Not to advocate pragmatism, But if we choose conventionalism because it provides acceptable strategy for reaching the most efficient balance between certainty and flexibility, then we should choose pragmatism, which seems a far better strategy, instead.
  • Summary: In early part of chapter, argued that conventionalism fits our legal practices badly. I asked if that conception would justify these practices, by providing an attractive picture of law’s point, if it fit well. We have now seen it would not, we have no reason to strain to make it fit. Failure of conventionalism as interpretation of our law is complete: it FAILS on both dimensions of interpretation.