It is often assumed that because WhatsApp is an external app and end-to-end encrypted, messages are not capable of being disclosed as part of a response to a subject access request. However, this area of law is not yet fully developed in relation to data protection law and thus is unclear and as of yet untested in the courts or tribunals.
As a general rule, it is arguable that if employers specifically encourage or endorse the use of WhatsApp as a means of business communication, the content of such conversations will be disclosable as part of a subject access request response.
Given that such messages may be disclosed, it is important to protect against the risk of any potential discrimination or claims on the basis of vicarious liability arising out of the content of WhatsApp conversations between employees. Employers who don’t encourage or endorse the use of WhatsApp for business communication are advised to make this unequivocally clear in social media and other relevant policies. Please ensure that your office manuals are up to date on this issue.
Given the increasingly blurred line between work and social life, the content of WhatsApp conversations between employees can be a significant source of legal and reputational risk to employers. Employers should thus confirm their position on third-party chat apps such as WhatsApp, Instagram and Facebook Messenger to employees.
For further information on setting up suitable office procedures in relation to social media through your office manual or any other area of employment law, why not contact one of Alexander JLO’s expert employment lawyers and see what we can do for you?