The DTI had published the rules and invited public comment. It received criticism that the rules were impractical and has agreed to extend the consultation period by three weeks. They are now intended to come into force on 24th October, according to a report in today’s Financial Times.
The new rules follow the introduction of the EU’s Telecommunications Data Protection Directive that requires Member States to protect the confidentiality of communications made by means of a public telecommunications network. The interception of communications on a public telecoms network is prohibited in the UK under the Interception of Communications Act 1985. However, this Act will be repealed by the Regulation of Investigatory Powers (RIP) Act when it comes into force in October. The RIP Act, which itself has faced much criticism, aims to change the regime governing interception and protect confidentiality.
However, the EU Directive permits Member States to authorise the interception of communications for the purposes of providing evidence of a commercial transaction or other business communication, and for purposes of national security, the detection of criminal offences and the detection of unauthorised use of a telecoms system. The Government proposes to make "Lawful Business Practice" Regulations under powers of the RIP Act to specify the circumstances in which both private businesses and public authorities may lawfully intercept communications.
The proposed rules provide that, except in certain circumstances, an employer cannot legally intercept an employee’s e-mails or other messages without the consent of both sender and recipient. A risk of delaying the introduction of the rules beyond the introduction of the Human Rights Act is that it leaves employers, at least those in the public sector, vulnerable to being sued for breaching employees’ rights to privacy if they intercept e-mails without the consent of their employees.
The new deadline for public comment is 15th September.