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Posted on February 21st 2006 in Legal Articles

Do you know who’s looking at your e-mail? The rights of employers and employees

Do you know who’s looking at your e-mail?
The rights of employers and employees

The right to privacy and the right to know are not contradictory but complementary; they are companion rather than conflicting freedoms. The right to privacy and the right to know are twin freedoms under a democratic order. — John Turner

E-mail has, at least to some extent, revived the art of correspondence. And it seems that one of the best places to catch up on our personal e-mail is at work. The question then, for both employers and employees, is who is allowed to monitor this correspondence.

Ask most employers and they will probably tell you that the computer, e-mail account and access to the Internet are company property and therefore they have every right to keep an eye on what is going on. Employees on the other hand, might be appalled to learn that their private e-mail as well as the files they download from the Internet are being monitored by their employer.

While employees are legitimately concerned about their privacy and the sanctity of their private communications, employers have their own equally legitimate concerns. The employer’s concerns may include:

– the amount of personal use being made of their resources, particularly during working hours;

– the security of their network, particularly with the proliferation of computer viruses;

– their corporate reputation, especially since e-mail addresses generally include the company name; and

– their legal liability for the actions of their employees who are using company resources.

In recent years, the American courts have addressed this issue in several high profile cases. In these cases, the courts have generally sided with the employer. In Canada there has been no definitive decision and this area remains essentially unregulated in the private sector.

So where does that leave Canadian employers and employees? In attempting to answer this question most legal experts point to section 184 of the Criminal Code. This section states that anyone who wilfully intercepts a private communication is guilty of an offence. However, since the issue has not yet arisen in a legal context, it is difficult to say how the courts would apply section 184 to monitoring of e-mail in the workplace. In addition, there are many who argue that employees have a legitimate expectation of privacy, which cannot be overridden by the mere fact that they are using company property.

In the absence of any concrete legal direction in this area, it is incumbent upon employers, who wish to monitor their employees’ electronic communications, to establish a policy with respect to use of company e-mail and Internet. Keep in mind, it is easier to think about the problems that may arise rather have to deal with them after the fact.

An e-mail and Internet policy allows both sides to know the “rules” and it reduces the employees’ expectation of privacy. The following are a few suggestions of what to include in such a policy.

– Who owns the systems and files.

– The purposes for which the company’s e-mail and Internet may be used.

– The extent to which these tools may be used for personal reasons, including any specific prohibitions.

– The security procedures which must be followed.
– That access to these tools will be monitored.

– The repercussions for breaching the policy.

Once you have created a policy it is important to make employees aware of it, to get written acknowledgment from employees of it and to enforce it consistently.

With respect to employees, if you are concerned about the boss seeing your e-mail you should consider having your own private account and/or sending your personal correspondence from your home computer.