Employees who are in the habit of using their personal mobile phones or other electronic devices to send and receive work-related messages would be well advised to change their ways in the light of a ground-breaking Court of Appeal ruling.
The case concerned a claim for damages brought by a former mobile phone retailer against a number of mobile network providers in respect of alleged anti-competitive conduct. As part of the evidence-gathering process, the retailer wished to inspect any work-related messages to be found on the personal electronic devices of certain of the providers' senior officers, employees and ex-employees.
Following a hearing, a judge directed the providers to write to individuals concerned, requesting them to provide IT consultants with access to their personal phones and emails. The purpose of the order was to enable the consultants to search for work-related communications relating to the providers' business. Relevant messages would be passed to the providers for a disclosure review to be undertaken.
The consultants were required to give binding undertakings that they would search for relevant material only, that they would not disclose any other material to the providers or their solicitors and that they would return devices and emails to their owners and delete or destroy any copies taken.
Rejecting the providers' challenge to that order, the Court noted that it was common ground that any relevant work-related messages found on individuals' personal devices were to be treated as being under the providers' control. There was no jurisdictional bar on the judge directing the providers to request the individuals voluntarily to produce their personal devices and all emails stored on them.
The Court acknowledged that the personal devices were likely to contain a great deal of highly personal and private information, relating not just to their owners but also to their friends, families and contacts. The order involved some interference with their human right to respect for their privacy. Given the safeguards built into the order, however, it entailed as little such interference as possible.
Overall, the judge had made a proportionate order after carefully balancing the need for the due and efficient administration of justice against individual privacy rights. He was also entitled to indicate that the providers, when making their requests, should not inform individuals concerned that they were entitled to refuse compliance. One provider's argument that the judge's order violated the General Data Protection Regulation also fell on fallow ground.
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