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Judge putts stop to McIlroy phone investigation

19/01/2015

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Ireland

The use of employee-owned devices for work purposes has become an accepted norm in many organisations. In that context, the recent decision of the High Court[1] to refuse a request by Horizon Sport for inspection of Rory McIlroy’s mobile phones in their contractual dispute is of interest to employers in Ireland. Barry Walsh explains further.

The Court’s reluctance in that case to order inspection of the famous golfer’s personal devices reflects the law’s general hesitancy to allow third parties access to a person’s private telecommunication devices. In the McIlroy case Horizon alleged that the golfer had “wiped clean” various mobile phones which it alleged may have contained information relevant to the underlying dispute. The Judge felt that such inspection would be a speculative exercise and that granting such an order over such personal devices in the circumstances would be oppressive.

Risk of disclosure of employee's private information

While it is not an employment law case, it is relevant for employers and in that the decision and reasoning represents the general views of Courts when asked to force employees or former employees to hand over private devices such as smartphones, tablets or other mobile devices to employers for inspection. Courts are very attuned to the impact on an employee by allowing such access and the risk of disclosure of the employee’s private information. Reported employment cases in such situations are few but a recent UK case will be of interest to employers who permit employees to extensively use their private devices for work purposes. In Warm Zones –v- Turley (2014) the UK High Court ultimately granted a mandatory injunction which allowed the employer’s forensic expert to inspect and take images from personal computers of two former employees. It is a relative rare instance of where a Court felt justified in ordering such a draconian remedy to an employer. In the Warm Zones case the Court was satisfied there was sufficient evidence of misuse of sensitive and commercially valuable confidential information to justify the access order and felt that safeguards could be put in place to protect the former employees’ private information. Many commentators believe the case reflects the exception rather than the rule and is very fact specific.

Use of privately owned devices for work more commonplace

Bring your own devices (BYOD) practices have become more widespread and are favoured by some industry sectors who see the benefits of allowing employees use their own devices for work related activities. While there clearly are some advantages to BYOD practices, the security and confidentiality risks are also well known. Some employers try and manage this by including software on such employee devices which allows the device to be essentially “wiped clean” in the event of loss or theft. BYOD policies are also generally rolled out in such cases and provide some protection for employers.

Ownership of devices offers employers greater protection

We all know that the lines between private and work life have blurred in recent years but, in the event of a dispute, owning the devices will make it far easier for employers to recover such devices including all confidential or client information stored there. The above cases highlight the desirability of only allowing employees to use employer owned devices when carrying out their employer businesses. This will be most valuable in the event of alleged confidentiality breaches or breaches of restrictive covenants by employees. As the McIlroy/Horizon case illustrates, an Irish Court will need a good level of evidence to convince it that access to private devices should be granted in the event of disputes and will be very reluctant to facilitate “fishing expeditions” by employers in the absence of compelling proof. For further information or advice on these matters please contact Barry Walsh, Partner, Julie Austin, Associate or any member of the McDowell Purcell Employment Law team. [1] See Irish Times 9 January 2015