Originally published in June 2002
The legitimacy of the control by the employer over the employees ’activity through IT tools used by the employees in order to carry out their activity, has excited interest in Italy, not only within the political and the trade unionist debate,but also in the public opinion itself. The problem arose because an Italian rule states that the use of audiovisual equipment and other devices to control employees ’ activity at a distance, is forbidden and punished as a criminal violation.
Originally,this rule was created to prevent the employer from controlling employees’ activity by means of video cameras situated at the work places; then, Italian judges extended the scope of this rule also to the use of switchboards, which can record the telephone number and the length of the employees’ calls. In the light of this extensive construction of the Italian rule, companies had the problem if the control over employees’ activity through internet and e-mail falls within the scope of this rule.
Recently the Italian High Court, with a ruling of 3 April 2002, no.4746, held that switchboards do not fall within the scope of the rule, because the employer is entitled to control illicit conduct of the employees, for example, making phone calls for personal purposes using the company ’s telephone. As far as the control through internet and e-mail is concerned, the Tribunal of Milan, with an order of 13 May 2002, held that the employer, who controls e-mails of the employees entering into his/her company ’s e-mail box,does not commit the crime of violation of the privacy of personal mail. In fact,in the judge ’s opinion:
- the personal e-mail address (firstname.lastname@example.org) does not involve the privacy of the address itself;
- the employee is neither entitled to enter exclusively into the company’s computer nor to use exclusively the company ’s e-mail box, because the company is the sole owner of the e-mail address and so the employer can enter into the computer and read at any time e-mails received or sent by the employees;
- by reading the e-mails of the employees, the employer does not enact a forbidden control over the employees’ activity, because both the computer and the use of the company’s e-mail address are tools through which the working activity is performed and so they remain at the disposal of the employer;
- the employee has to give the employer all his passwords iin order to let the employer enter into the computer and read e-mails either received, or sent by the employee, at any time.
These judgments are very important in order to allow the employer to control if the employees use the company ’s tools in a correct and lawful manner, even if a specific company’s procedure is necessary.
This information has been prepared by the firm as a service to our clients. As it is a general guide we recomend that you seek professional advice before taking action.No liability can be accepted by the firm for any action taken as a result of this information.