Do private employees have a right to privacy over their e-mail communications?

The development of computer and Internet technology has caused the public and the private sector to be highly dependent on these advances for faster communication and increased productivity. It is not uncommon for offices to provide their employees with personal computers with Internet connection and electronic mail or e-mail. The e-mail system has aided productivity and business growth because of the speed of real time communication and reduced cost in the exchange of correspondence.

Coupled with these advantages is the advent of substantive questions arising from the use of Internet technology. For example, employees have claimed a right to privacy over their e-mail communications. On the other hand, the employer has a right to protect its business, regulate the use of its property and monitor the performance of its employees. The employer has a right to protect itself against the risk of confidentiality and security breaches, which may either be unintentional, for example by mistyping an e-mail address, or intentional, such as in the case of corporate espionage. The employer has a right to protect its reputation, which may be damaged by an e-mail of an employee containing unprofessional remarks. There may also be lost productivity from inappropriate use of the company’s e-mail system. There may also be theft of corporate property by the employee, proof of which can be gathered by accessing e-mail communications of the employee concerned. Another concern is the risk of vicarious liability as what actually happened in the United States where a software company won a case for infringement after an employee of the association placed files containing copyrighted clipart on the association’s web page.

The conflicting interests of employers and employees have given rise to a number of legal issues. Does an employee have the right to privacy of his e-mail communications in the workplace? May the employee invoke the Bill of Rights, which was intended as a limitation against the power of the State, against his employer? Do employers have an absolute and unqualified right to monitor and access the e-mail communications of their employees? If not, to what extent does the employer can monitor and access the e-mail messages of its employees? Does the right to regulate extend to purely personal messages which the employees send through the company Internet system? Can third persons and courts of law demand production of these e-mail messages in the event of litigation involving the employee?