1. Introduction

2. March 1, 2007 Resolution by the Italian Data Protection Authority

2.1 Surveillance in the Workplace

2.2 Company policies on email and internet use in the workplace

1. Introduction

The Italian Data Protection Authority ("Authority") with a resolution issued on November 23, 2006 provided a set of guidelines aimed at clarifying following areas:

Security Requirements: The employer must appoint specialized personnel with adequate training in the processing of confidential data. Furthermore, the employer must adopt measures to prevent third parties from obtaining employees’ personal information.

Badges: in order to identify employees, a badge with a specific identification code is sufficient; whenever possible, the badge must show the employees first name and/or his/her job title.

Intranets: The employees’ consent is required to publish personal information about the employees on an intranet (e.g., curriculum vitae, pictures and so on).

Medical Data: The employer must keep separate any information regarding medical data of the employees.

Biometric Data: The Authority allows the use of data derived from digitally recorded fingerprints (biometric data) only in particular cases (e.g., access to dangerous manufacturing processes, to confidential documents). The creation of a generalized data base of biometric data is never allowed.

This resolution did not regulate the use of email and internet on the workplace, so the Authority announced that further measures would be enacted on these areas.

2. March 1, 2007 Resolution By The Italian Data Protection Authority

As announced in the November 23, 2006 resolution, the Authority by a resolution dated March 1, 2007 has set out a further set of a guidelines aimed this time at laying principles on the use of email and internet in the workplace.

By this resolution the Authority has weighed two fundamental needs: (i) the protection of the employees’ personal information and (ii) the employer’s right to a correct use of new technologies (e.g., email and internet) in the workplace.

On the one hand the new technologies increase resources available to employers, but on the other hand the same resources enable different forms of electronic surveillance, which may be used in such a way so to intrude upon certain rights and freedoms granted to employees by Italian law.

In this context, when analyzing the use of email and internet, the Authority takes the view that prevention should be more important than detection; in other words, that the interest of the employer is better served by preventing email and internet misuse rather than by simply detecting such misuse.

For these reasons the Authority recommends the drafting of a comprehensive company policy, clearly and accurately stating the rules for the use of email and internet in the workplace.

2.1 Surveillance In The Workplace

The Italian Constitution guarantees the freedom and secrecy of correspondence and any other form of communication.

The Italian Privacy Code (Legislative Decree no.196 of 2003) and the Italian Labour Law (Law no. 300 of 1970) forbid any form of remote surveillance by the employer, whether through hardware or software systems. By way of example, this makes it illegal to systematically read and record employee’s emails or web-pages consulted. Such forms of remote surveillance are deemed an illegal invasion in the employees’ privacy within the workplace.

As an exception to the above, the Italian Labour Law allows the use of technologies which could indirectly result in the remote surveillance of employees with the consent of the appropriate Trade Union, and provided that surveillance in this case is specifically required for organisation or manufacturing reasons or for workplace security.

In relation to email use in the workplace the Authority provides a set of guidelines aimed at clarifying the distinction between email use for professional and for private reasons:

  1. The employer should give to employees, as needed, either a shared anonymous email account (e.g., info@company.it; HumanResources@company.it) or a further personal account only for a private use;
  2. The employer should adopt a system that in case of absence of an employee sends an automatic message to inform the sender of such absence.
  3. The employer should allow the employee who is unexpectedly absent to delegate another employee (fiduciary) to consult his/her professional email account in case of need.
  4. The employer should adopt a system to let know to the addressees of the emails sent by the employees that such emails are not private and that the relevant content could be known by third parties.

In relation to internet use in the workplace the Authority provides guidelines aimed at regulating the monitoring of employees’ access to internet. In particular, the employer should:

  1. clearly inform the employees about the conditions on which private use of the internet is permitted as should also inform employees about materials which cannot be viewed or copied;
  2. set out a list of the websites that can be visited in connection with the professional activities;
  3. adopt systems and/or filters to prevent, by way of example, access to certain websites, the uploading or downloading of files or software with certain characteristics, etc.

2.2 Company Policies On Email And Internet Use In The Workplace

The employer must adopt an "Email/Internet Policy". This policy must describe in detail (i) the extent to which these technologies may be used for personal/private communications within the workplace by the employees, (ii) the means by which surveillance, if any, is carried out by the employer (iii) what information and data are temporary kept and who has access to such information, (iv) any disciplinary sanctions applied in case of misuse of such technologies.

The Email/Internet Policy must be appropriately disclosed to employees. So this policy may be communicated to the employees by emails, by affixing it in all the working areas of the company, etc.

If the companies does not comply with these rules, any information on the misuse of email and internet within the workplace kept by the employer may not be used against the employee in a disciplinary action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.