A couple of the normal BBC-baiting newspapers report that that organisation has been “accused of spying on whistleblowers”, after a Freedom of Information request revealed that the BBC’s Investigation Service monitored emails of 30 workers last year. The Telegraph says this
raised fears that BBC management is engaged in a crack down on people it suspects of whistle-blowing about their concerns over the running of the corporation
There seems to be absolutely no evidence for this. To me it looks more like an employer intercepting communications on business systems in order to prevent or investigate potential unlawful behaviour. The law provides for this, and the paper reports that the BBC even said
The BBC Investigations Service does not target whistleblowers. The four cases of leaked information involved other matters such as the release of commercially sensitive information or the release of internal information – none of the four cases of leaked information could be considered as whistleblowing in any sense. The BBC has a clear policy protecting the right to whistleblow
The circumstances under which email communication can be intercepted by an employer are clearly prescribed by law. The much-maligned and -misunderstood Regulation of Investigatory Powers Act 2000 (RIPA) corrected the previous domestic position that workplace surveillance could not amount to an infringement of an employee’s Article 8 rights (a position criticised by the European Court of Human Rights in Halford v UK). The provisions of section 1 of RIPA create a criminal offence of unlawful interception of a communication (transmitted either by public or private telecommunications system) where the interception occurs without lawful authority. However, secondary legislation, made under RIPA, prescribes what “lawful authority” can mean within an employment context. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (the “LBP Regulations”) provide inter alia that interception of emails will be lawful if it is done for the purposes of preventing or detecting crime, or for the purpose of investigating or detecting the unauthorised use of that or any other telecommunication system. This can be done without consent or notification as long as the business informs users of its systems in advance (normally by way of a policy) that emails may be intercepted for relevant purposes (I wrote on this in detail in None of our business? Private emails, FOI and lawful interception (PDP FOI Journal, Nov/Dec 2011
Volume 8, Issue 2, subscription only)).
So, provided the BBC have a policy informing staff that their emails could be intercepted (and I would be amazed if they don’t) they will have done nothing wrong, and nothing that a responsible employer, and public service provider, should be blamed for doing. Do the Telegraph and the Mail think the BBC should not investigate alleged unlawful – perhaps criminal – behaviour on the part of its staff?
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