Italian Case Law About the Control of Employees Through Internet and e-mail

The question of whether employers are legitimately entitled to use IT tools to monitor employees' activities has generated much debate in Italy, not only within political and trade unionist circles, but also among the general public.

At the heart of the argument is an Italian rule which states that the use of audiovisual equipment and other devices to monitor employee activity at a distance is prohibited and punishable as a criminal violation.

While the rule was originally introduced in order to prevent employers from monitoring their employees' activities by means of video cameras installed at the workplace, Italian judges later extended its scope to prohibit the use of switchboards that can record the telephone number and the length of employees' calls. In view of the rule's broad scope, companies have become anxious to establish whether the monitoring of employee activity by way of Internet and email falls within the scope of the rule.

An Italian High Court decision of April 3 2002 (Decision 4746) has now reversed the earlier position, by ruling that switchboards no longer fall within the scope of the rule. It held that an employer is entitled to control illicit conduct such as use of the company telephone for personal purposes.

With respect to the use of Internet and email, the Tribunal of Milan held in an order of May 13 2002 that an employer who monitors the emails that an employee receives in his or her company mailbox is not guilty of violating the employee's privacy. The judge stated that:

• simply because an email address is personal (name.surname@employer.com) does not automatically imply that it is private;
• the employee is not entitled to exclusive use of his work computer or of the company's electronic mailbox, because the company is the sole owner of the computer and the email address. As such, the employer is entitled at any time to log onto the computer and read emails received or sent by its employees;
• the employer does not exercise prohibited control over employees by reading their emails, since both the computer and the company email addresses are tools through which work activities are performed. They thus remain at the employer's disposal; and
• an employee must provide the employer with all his or her passwords, so that the employer can log onto the relevant computers and read the employee's emails at any time.

These judgments are very important, as they allow employers to ensure that their employees are utilizing company tools in a correct and lawful manner. However, employers should take note that before they can take action against employees who have used company tools improperly, they must draw up a disciplinary code that spells out the penalties for such misuse.