Privacy? What Privacy?

The Court of Appeal has concluded in the recent case of Brake v Guy that an employee cannot reasonably expect a right to privacy or confidentiality when using a company email account in a personal capacity.

Facts

Mr and Mrs Brake worked for a holiday letting business owned by a Dr Guy, which was later sold to another company.

During the course of her employment, Mrs Brake had set up three new business email addresses.  Two of these addresses were in the names of Mr and Mrs Brake, and the third email address was a “general enquiries” account, which Mrs Brake often used for personal emails.

The relationship between Mr and Mrs Brake and Dr Guy broke down, and Dr Guy dismissed them.  It was alleged that there was evidence of wrongdoing stemming from the personal emails sent from the general enquiries email account.

Mr and Mrs Brake applied for damages for misuse of private information, breach of confidence and an interim injunction to prevent the disclosure of the emails.

The claim that there was a reasonable expectation of privacy and confidentiality was rejected, as the Court did not consider the emails within the general enquiry account to be private.

The Court therefore dismissed the claim, and Mr and Mrs Brake appealed.

Court of Appeal Decision

The appeal was dismissed. The Court of Appeal held that:

• no error had been made;
• the law had been applied correctly in the first instance;
• Mr and Mrs Brake could not reasonably expect any degree of privacy in relation to the emails sent from the general enquiries account;
• the general enquiries account was a business account, shared with others, which was designed to receive business-related enquiries;
• although Mrs Brake held the password to the account, she held this in a professional capacity as an employee as opposed to a personal capacity;
• any personal emails should have been sent from the email addresses that were set up in the names of Mr and Mrs Brake, which were subject to a reasonable degree of privacy.

Points to consider..

It is important for employers to make it clear to employees about the way in which they can and will, if necessary, access data, and how privacy issues will be dealt with, so that employees have a clear understanding of the position.

To minimise the risk of disputes, employers should reiterate that there is no right to privacy and confidentiality in respect of emails sent from any form of business email account.

For further information, please contact a member of our Employment team.