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Workers in industrialised countries are steadily losing privacy in the workplace as technological advances allow employers to monitor nearly every facet of time on the job, a new report by the International Labour Organization (ILO) says.
American workers are among those facing the greatest loss of privacy from the use of computers, cameras, listening devices, telephones and other instruments to monitor employee behaviour in 19 industrialised nations, according to a three-volume ILO study, Conditions of Work Digest: Workers' Privacy. One US survey suggests that as many as 80 per cent of employees in telecommunications, insurance and banking are subject to telephone or computer-based monitoring. Similar developments are taking place in European countries.
The move to increase international privacy protection is gaining ground. Workplace abuses in Italy, Norway and Sweden led to special restrictions on video and audio surveillance of workers. In Austria, Belgium, Germany, the Netherlands and Sweden, the use of technical devices to monitor employee behaviour and performances requires prior agreement or consultation. In France, concerns over company inquiries during recruitment led to the strengthening of the labour code to protect a job candidate's right to privacy.
"Workers' rights to privacy should be treated as a fundamental human rights issue, but the new technology can pose dangers to privacy, even as it is improving all our lives", says Michelle Jankanish, co-author of the ILO study. "It doesn't matter whether you work in a factory, in an office or as a highly paid engineer or professional - you are very likely under observation, with or without your permission, in some way by computers or machines controlled by your boss".
Companies like to engage in such monitoring, even though many admit that the practice elicits little or no useful information. Yet monitoring is likely to indirectly influence employees' behaviour. An employee's awareness of being under surveillance is likely to have an intimidating effect and to lead to self-censorship.
A study in the Netherlands demonstrates how rapidly technology is being used to monitor workers. 88 per cent of all electronic monitoring systems were installed after 1980, 57 per cent after 1985.
Workers in all countries have expressed considerable concern about employer access to electronic mail. The use of electronic mail has grown dramatically, especially in the United States, from just a few hundred thousand in the mid-1980s to 10 million in 1990 and millions more by 1994.
The Electronic Mail Association in the U.S.A. takes the position that electronic mail is no different from desk drawers, office doors or other personal space in the workplace in terms of privacy, and should be treated with the same concern, but many companies take a different view.
ILO calls the problem a "chemistry of intrusion", a combination of threats to informational privacy, increasing encroachments on physical privacy and increased physical surveillance.
In the words of the Privacy Commissioner of Canada, "with each new form of surveillance, we become less like individuals and more like automatons, monitored for defects and aberrant behaviour that will consign us to the reject pile or mark us for `corrective' measures".
Concerns of employees
The major objections by worker organisations to obtrusive computer monitoring in the workplace include:
- Their use is a violation of basic human rights and dignity, and is often carried out without adequate consideration for such interests.
Computer data banks and telephone and video monitoring make prying into the private lives of workers easier and more difficult to detect than ever before.
Monitoring and surveillance give employees the feeling that they are not to be trusted.
Such practices can be used to discriminate or retaliate against workers, which may be difficult for workers to discover.
Monitoring and surveillance involve both issues of exercising control over workers and control over data relating to specific workers.
The report offers many examples of the misuse or abuse of employer surveillance.
In Switzerland in 1989, employees of a watch company successfully challenged the installation of surveillance cameras in different areas of the workplace for the stated purpose of controlling the functioning of automatic machine devices. Under Swiss law, respect for the "personality right" of the worker is to be protected. The workers established that the cameras could also subject them to continuous monitoring. Under the facts of the case, the court found for the workers, stating that the employer failed to establish a over-riding interest to left control.
A common argument made on behalf of limiting employer monitoring and surveillance practices in the workplace is that employers should not be able to engage in practices that, if carried out by a law enforcement agency, would require special authorization, be subject to restrictions, or possibly be prohibited altogether.
The American Civil Liberties Union (AclU) stated that "even criminals have more privacy than employees. If the FBI wants to tap the telephone of someone who is spying against the country, they must get a court order . . . Only the workplace can surveillance be conducted without safeguards".
A US study on electronic monitoring and job stress confirmed earlier studies that implicated electronic monitoring as a major stress factor in the workplace, which is linked in part to the sense of powerlessness that monitored employees feel.
Legal frameworks, policies and practice on Workplace privacy in European countries
Austria: There is no specific legislation on workers' privacy in general, or on monitoring and surveillance in the workplace.
Belgium: There is no general right to privacy mentioned in the Constitution, and its provisions are considered to be too imprecise to deduce such a right from them. It does provide for the inviolability of the home and secrecy of letters.
Denmark: The Constitution contains the basic legal provisions respecting the inviolability of private homes and personal privacy related to the confidentiality of papers, postal, telegraph and telephone matters. Though there is no specific law on monitoring surveillance at the workplace, several laws do restrain employers.
Finland: The Constitution Act contains basic provisions respecting the inviolability of private homes and the "secrecy of postal, telegraphic and telephone communications", unless exceptions are provided for by law. Several laws exist that restrict employers from engaging in monitoring and surveillance at the workplace.
France: There is an explicit right to privacy mentioned in the Constitution. The Labour Code is the most important law to protect the workers from unjustified intrusions on individual rights (including privacy interests).
Germany: There is no explicit right to privacy in the German Constitution, though the Constitutional Court issued a landmark decision in 1983 in which it declare a right to "informational self-determination".
Italy: Several articles in the Italian Constitution protect workers on monitoring and surveillance. For example, Article 15 guarantees freedom and secrecy of correspondence and of all other forms of communication, while Article 13 forbids detaining, inspecting or searching a person or limiting in other ways his/her personal freedom.
Netherlands: Article 8 of the Council of Europe 1950 Convention for the Protection of Human Rights and Fundamental Freedoms has been incorporated into the Dutch Constitution. In addition, a number of fundamental rights to privacy were included in the revised Constitution of 1993.
Norway: The Constitution of Norway prohibits the searching of a person's private home, except in criminal cases, but does not refer to the right of private life per se. Though there are no specific statutory provisions on monitoring and surveillance at the workplace, several laws have an impact on or restrict the ability of employers to monitor employees.
Portugal: The Constitution of 1976 grants privacy rights to all persons. In addition, Article 35 explicitly regulates the use of data processing, granting citizens the "right of access to the data contained in automated data records and files concerning them".
Spain: Article 18 of the Spanish Constitution guarantees "the right of honour, personal and family privacy and identity" and the "secrecy of communications, particularly postal, telegraphic and telephone communications", except by judicial order.
Sweden: Debate exists over the applicability of constitutional principles on privacy to the private sector. Several laws affect or restrict the ability of employers to monitor employees.
Switzerland: There are no specific provisions on privacy of workers. Some legal commentators, however, have set out the framework of protecting workers' privacy through applications of principles protecting the "personality" rights of individuals. This right, however, is limited by the employment contract.
United Kingdom: There is no constitutional or statutory right of privacy in the UK as such. The Data Protection Act of 1984 does, however, introduce certain guarantees of employee privacy for data collected in the employment context, which are stored on computer.
Source: ILO Press Release, Washington, 1.8.94. Contact: Marshall Hoffman, ILO, Washington Office, 1828 L Street, NW, Washington DC 20036; tel: +1/7038202244.