The use of internet and e-mail at work - Belgium

As in England in Belgium it is common place that employees use email and internet for private purposes in the workplace. Because of this, there is an increasing interest from employers to control the use of the internet in order to avoid abuse and to protect the company's computer system against viruses.

In the absence of any specific legislation it is difficult for employers to assess the limits of what is reasonable when controlling the activities of its employees and when such control could be considered legitimate.

The general principle of the proposed law remains the 'Right to respect for private and family life'  as defined in article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which we will refer to as the Convention), providing amongst other things that :

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".

The draft Belgium Bill will in fact allow employers to control the use of email and internet by its employees, without risking a claim for damages as a consequence of infringing article 8 of the Convention.

But the control will not be without limits.  It will have to be transparent, proportional and follow a certain purpose.

Transparency means that the employee(s) will have to be informed prior to any control and of the nature of the measure and the purpose of the control.

In companies with a works council, (i.e. companies having more than 100 employees) the council will have to be consulted prior to the implementation of any measure. In the absence of a works council the employer will only have to inform the employees. In any event, the working regulations  (arbeidsreglement/ règlement de travail) will have to include information on the control measures.

The purpose of the control measures must be legitimate. The draft Bill includes a list of reasons capable of justifying a limited control by the employer. One of these justifications is for example "the control of the activities of the employee and the manner he executes his mission".

Another example is "to prevent and detect abusive use of email and/or internet use incompatible with the rules laid down by the employer".

Proportionality means that control must be limited in time but also limited to the employees against whom there are concerns about the abuse of the employer's IT infrastructure.

The employer will also be able to fix the sanctions for the employees abusing the system.

The draft Bill reiterates to a certain extent the (non-binding) opinion already issued by the Belgian Privacy Commission of October 2000, relating to the control by the employer of the use by the employee of computer equipment in the workplace.

Without a doubt the legislation will remove the uncertainty that a lot of employers were facing when implementing such a control within their enterprise.  It will also give clear guidance to the employees of what is and is not permissible.
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.