In most companies managers and colleagues often need to access the communications of fellow workers, especially when they are absent, or if they work part-time. But in doing so there is the ever present threat that they may be breaching privacy rights.
In Europe, the constitutions of many countries include privacy clauses that apply to correspondence, whilst Article 8 of the European Human Rights Convention requires the respect for someone’s “private and family life, his home and his correspondence”. In the USA case law arising from the fourth amendment gives very extensive protection where there is a “reasonable expectation of privacy”.
But employers generally have a bone fide reason to look at correspondence that arises during working time, especially if it is generated on company equipment and sent through its communications systems. In a recent case before the European Court of Human Rights (ECHR: Bărbulescu v. Romania) an Article 8 challenge was dismissed even where access was obtained to check whether an employee was performing tasks relevant to an employee’s specified duties. In Japan, employers have a duty under the law on security of personal data to ensure that communication systems are utilized responsibly. However, the monitoring must be undertaken after due consultation with employee representations and directly with the employees subject to surveillance. In Singapore there is no statutory right to privacy, although its law of confidentiality does apply quite widely. Most large companies include monitoring clauses in employment contracts and undertake periodic checks of communications that are sent through their equioment.
Interception of telephone calls has always been a more precarious issue for employers with the possibility of a legal challenge even if the data intercepted is just a log of numbers called and their duration. In Halford vs UK (ECHR) it was even found unlawful for an employer to monitor calls from company equipment outside normal working hours. In India case law on recording of conversations one is a party to suggests that, on the whole, such acts are lawful. However, the recording of conversations where neither party has given their consent is generally unlawful unless there is a strong public interest case for doing so.
Finally, there is the sticky question about monitoring employee texts sent from company-owned or leased mobile phones. The most pertinent case law about this issue comes from a French Supreme Court finding on February 10th 2015. The court found that not only is it lawful to search for records of calls received or sent from company mobiles, but for such data to be used in court.
The lesson of case law around the world is that employers should always have in place a detailed policy covering all means of communication and include monitoring clauses in individual employment contracts. This should forbid the use of company systems for personal messages of any kind. Where appropriate, they should have consulted with employee representatives on the nature of surveillance undertaken and the wording of company documents. Last but not least, they should have warned employees that access to their work-related communications may take place and only access communications on legitimate grounds.