WRITTEN BY: Patrick Van Eecke
The Belgian Privacy Commission has finally clarified whether or not, and under which circumstances an employer is allowed to monitor the use of internet, e-mail and other e-communication tools by its employees. Prior to the Commission’s additional guidance in this respect, employees could in principle argue that under art. 124 of the Belgian e-Communications Act of 13 June 2005, employers were not allowed to carry out cyber surveillance activities vis-à-vis their employees.
In its recommendation, the Privacy Commission now confirms that, based on employment law and in particular the employer’s authority over the employee in order to ensure a good course of business, the employer can monitor the employee’s use of the internet and electronic communications, without the employee’s consent. However, such right can only be carried out when the employer complies with the principles of finality (monitoring can only take place for specific purposes), proportionality (no general and systematic control is allowed) and transparency (the employees must be duly informed of the surveillance measures, e.g. by ICT policies, notices, etc.). In addition, employers must also comply with Collective Bargaining Agreement No. 81, imposing these three principles and some additional limitations and warranties in order to ensure that the monitoring takes place in a compliant manner.
As a result, despite of the Privacy Commission’s new guidance, when planning monitoring activities, it is strongly to recommended to review the envisaged or current practices and policies used or to be used in this respect in order to avoid that evidence gathered by employers could be triggered by employees for being obtained unlawfully.