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Total Number of Subscribers: 451 |
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Date: 18th July 2008 |
Compiled by Mr. M. Sathya Kumar |
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Article by Azmul Haque The use of email in offices is a common
characteristic of modern-day workplaces that has revolutionized communication—both intra-company as well as with outside clients. However, new
technologies have also made it possible for employers to effortlessly monitor
office email used by the employee, thereby violating the employee’s right to privacy. The right to privacy in India: There is no Indian legislation that
directly protects the privacy rights of individuals. However, the judiciary
has expanded the scope of Article 21, one of the most controversial
fundamental rights under the Constitution of India, to include the ‘right to privacy’ as an integral part of the ‘right to life and liberty’. The right to privacy, as carved out by the apex
court, first emerged in the context of legislation permitting police
surveillance on individuals, which was struck down as being violative of the
right to privacy in the case of Kharak Singh vs State of UP in 1963. The subsequent development of the right has
seen it being invoked in cases, ranging from the right of a prisoner not to
be interviewed to the right of confidentiality of an HIV-infected person.
More significantly from the perspective of the employee’s right to privacy, the Supreme Court has held that ‘technological eavesdropping’ is also a violation of the right to privacy
in the case of People’s Union for
Civil Liberties vs Union of India in 1997. The case arose out of a challenge to
Section 5(2) of the Telegraph Act, 1885, which permits the interception of
messages in cases of public emergency or in the interest of public safety.
The court held that the right to privacy included the right to hold a
telephone conversation in the privacy of one’s home
or office and that tapping of phone, infringed this right. While this is
significant for the future development of this right, the protection of
Article 21 is available only against the state, and individuals whose rights
are violated by non-state entities would be left without any remedy. The Information Technology Act, 2000 in
Section 71, makes a reference to privacy in Section 72, where securing access
to any electronic correspondence, without the consent of the person
concerned, and disclosing such information to any other person has been made
an offence punishable with imprisonment for two years, or with a fine of one
lakh rupees. The provision would not protect the employee from undesirable
electronic surveillance by the employer, if the employer does not disclose
the information that he has intercepted to anyone else. It is interesting to
note that in no country does the right to privacy enjoy constitutionally
guaranteed status. Privacy in the US: In the US, the Fourth Amendment and the
constitutions of eight states afford some degree of privacy protection,
though only to public sector employees. Specific federal statutory protection
came into place only with the enactment of the Electronic Communications
Privacy Act, 1986, a legislation that prohibited the "intentional or
wilful interception, accession, disclosure, or use of one’s electronic communication". Though email was not
specifically enumerated, it could be brought within its ambit. However, the Act is constrained by three
exceptions that limit its applicability to employee monitoring. These are:
where the employer provides their employees with email through a
company-owned system (provider exception), if the employer is monitoring
business-related correspondence or has a legitimate business justification
for monitoring (ordinary course of business exception), and finally, if the
prior consent of the employee has been taken (consent exception). The above
exceptions carved out provide the employer with enough loopholes to escape
liability. In fact, in most cases, the email system is company-owned. Under
the ‘ordinary course of business’ exception,
the employer can monitor all business mails, though not personal
communications. The consent exception is the most powerful from the employer’s perspective as gaining employee consent may be achieved by
circulating a email monitoring policy to all employees. To further protect
privacy rights of employees, a new legislation before the US congress, called
the Notice of Electronic Monitoring Act, mandates that employers must inform
employees about the Electronic Monitoring Policy at the time of hire and
notify them annually or whenever there was a change in the policy. The flip side: While this may indicate that broad judicial
interpretations of enacted privacy legislations is favourable to employee
monitoring practices, it may be instructive to hear the other side of the
story – the legitimate concerns of employers who monitor employee communications.
Usually, email is monitored to keep tabs on
employee productivity or to prevent potential liability for the employer.
Employers are concerned with productivity and efficiency of the employee and
would not welcome usage of company equipment and company time spent on
non-productive activity. However, the issue of liability is a more serious
one– email that is racist, sexist or sexually explicit can
expose employers to potential liability from other employees based on ‘hostile work environment’ claims. A subsidiary of Chevron Corporation
was forced to settle a lawsuit for us $2.2 million after a list called
"10 reasons why beer is better than women" was circulated through
its email system. In the case of Blakey vs Continental Airlines, in
June, ’00, a unanimous New Jersey Supreme Court held that
postings on a work-related electronic board could amount to a hostile work
environment for which the employer would be liable. Other potential
liabilities that the employer could face include disclosure of confidential
information by the employee and the infringement of third-party copyright and
other intellectual property by the employee. Reasonable expectation: The courts have sided with the employers in
cases where violation of employee privacy has been alleged. In the case of Smyth
vs Pillsbury, a federal district court in Pennsylvania upheld the
employer’s termination of an employee, based on a review of intercepted
mail transmitted over the company system. The court reasoned that the review
was not a violation of the employee’s right to
privacy, even assuming that the employer promised not to intercept
the email or to terminate an employee based on a review of its contents, as
the employee has no reasonable expectation of privacy in messages sent over
the company email system. The issue of ‘reasonable
expectation’ is thus the determining factor—the use of passwords to gain
access to the system, specific references to email messages and mailboxes
being private would strengthen the case of the employee as having a
reasonable expectation of privacy. On the other hand, the circulation of
written policies dealing with email and electronic monitoring to the
employees would reduce their reasonable expectation of privacy. Striking a balance: Employee privacy issues often arise in other
areas. It is common for employers in the US to monitor employee telephone
calls and computer terminals. Extreme forms of monitoring verge on the comic
- a device placed in the employees’ chair can measure
worker ‘wiggling’, on the presumption that more wiggling implies less
working! Will there ever be a balance between the genuine concerns of the
employer, and the right to privacy of the employee? The answer may well depend
on new legislation that successfully keeps abreast with technology. © DSK Legal The views expressed in this article
are those of the author and do not represent the views of the firm. This
article does not purport to be professional advice, nor a complete or
comprehensive study on the subject. It is recommended that professional
advice be sought before taking any action pursuant to any matter contained in
this article. Source : [Published in the Corporate Counsel
section of the Economic Times (India’s leading business
daily) on December 1, 2001] |
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