New technology and respect for privacy at the workplace
The use of new information and communication technologies (ICT) at the workplace has spread rapidly in recent years, raising numerous issues for employers, employees and their representatives, especially in terms of the relationship between workers’ privacy and employers’ need to control and monitor the use of ICT. This article examines current legislation in the Czech Republic, which is specifically aimed at the issue of privacy at the workplace and which tries to strike a balance between employees’ and employers’ rights in relation to this matter.
Information on the use of new technology and respect for privacy in the Czech Republic only exists in connection with official law cases, and with regard to comments on and the interpretation of the legislation in place. Ultimately, employees’ and employers’ rights regarding privacy at the workplace must be exercised on the basis of the principle of maximum balance between the rights and duties of both parties.
National legislation concerning privacy at the workplace
In general terms, an employee’s individual rights at the workplace are protected by Act No. 262/2006 Coll. of the Labour Code and by Article 13 of the Charter of Fundamental Rights and Freedoms, which is incorporated into the Czech constitution. Article 13 provides that no person may violate the confidentiality of personal written materials, whether they are in the form of correspondence or records, and whether they are kept private or sent by post or in any other way – with the exception of the cases and in the manner laid down by law. The confidentiality of messages conveyed by telephone, telegraph or an equivalent device is equally guaranteed. This provision also applies to electronic mail. Furthermore, an employee’s individual rights at the workplace are governed by Article 8(1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms.
Article 8(1) of the Convention is followed up by the provision of Section 12 of Act No. 40/1964 Coll., Commercial Code, which states, among other things, that written materials of a personal nature may not be acquired or used without the consent of the person(s) whom they concern. Consent is not needed, however, if the written materials of a personal nature are required by law.
Another law relating to the protection of privacy in labour relations is Act No. 106/1999 Coll. on free access to information. This act regulates the right of free access to information and lays down the conditions under which information is to be provided.
Protection of personal data
Another law regulating an employee’s individual rights at the workplace is Act No. 104/2000 Coll. on the protection of personal data. It remains the opinion of the Office for Personal Data Protection (Úřad pro ochranu osobních údajů, ÚOOÚ) that regarding the use of email, an electronic address represents a piece of personal information where it contains the employee’s personal data, name and surname. For business purposes, however, employers may dictate the form and manner in which each employee communicates with other entities. For example, an employer may instruct employees to use email for work purposes. In this case, the employer has the right to make such email addresses accessible and public if necessary; the same applies in the case of other forms of communication. However, if an employer decides to publish the email addresses of all its employees, including those whose jobs do not require them to outwardly represent the employer, the company may do so only with the employee’s knowledge and consent. Such consent must be demonstrable and have legal standing.
Section 316 of the Labour Code lays down an express ban on the use of an employer’s production and work resources, including its computer and telecommunications technology, for employees’ personal requirements without the employer’s consent. Prohibited conduct tends to be defined in employers’ internal regulations, the framework for which is also set out by the Labour Code. The said provision also defines limitations for employers with regard to the protection of employees’ individual rights. Employers may not, without good reason, violate the privacy of employees at the workplace, or in communal areas, by subjecting them to overt or covert surveillance, eavesdropping, recording their telephone calls, or checking their emails or letters. Moreover, Act No. 29/2000 Coll. on postal services determines that post arriving at a company address is intended solely for the addressee. According to Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, which is implemented by Act No. 127/2005 Coll. on electronic communications in the Czech Republic, the location and ownership of electronic equipment cannot compromise the right to the confidentiality of communication and correspondence.
If an employer had good reason, as in the nature of the employer’s business warranted the introduction of control mechanisms, the employer would have to inform employees of the extent and ways in which the particular control would be implemented.
Even though the Labour Code took effect on 1 January 2007, little experience has been gained to date in defining the fine line that exists between an employee’s right to privacy and the employer’s legitimate rights and interests. This undoubtedly will be a matter for the courts. The issue mainly concerns employers which, by the nature of their business, have to protect the information they use, for example in banking, secret operations, trade secrets and business know-how.
Concept of privacy at the workplace
An employee’s individual rights with regard to privacy at the workplace are defined by the aforementioned legislation. In certain cases, more detailed definitions will be issued by the courts.
The employees’ rights must not be in conflict with the employer’s legitimate rights and interests and, in particular, with the employer’s right to demand effective work from employees; above all, it cannot run counter to the employer’s right to protection against liability risks, criminal conduct or damages that could be caused by employees. The employee’s and employer’s rights must be exercised on the basis of the principle of maximum balance between the rights and duties of both parties.
To date, the issue of ICT use and the respect of privacy at the workplace has not emerged as an issue in either higher-level or company-level collective agreements.
Infractions of the law
It was recently reported that the Trade Union Association of Railway Workers (Odborové sdružení železničářů, OSŽ) was obliged to pay a fine of CZK 200,000 (€7,143 as at 27 March 2007) for wrongfully using a camera system in the secretariat of the federation’s Chair, Jaromír Dušek. People were not informed about the cameras’ presence; moreover, the recordings obtained were not sufficiently safeguarded and ended up in the public domain. The fine imposed by ÚOOÚ has not been paid yet. Other cases regarding similar infractions have not yet come to light.
Trade union viewpoint
The largest trade union federation, the Czech-Moravian Confederation of Trade Unions (Českomoravská konfederace odborových svazů, ČMKOS), endorses the aforementioned legislation. In fact, in the case of Act No. 262/2006 Coll. of the Labour Code, ČMKOS helped to draw up the legislation. Unfortunately, information concerning the viewpoint of other trade union federations on the issue is currently unavailable.
A comparative overview of the situation in 16 European countries (15 Member States and Norway) was published in 2003 and is available online: New technology and respect for privacy at the workplace. This article, compiled from the same questionnaire, serves to highlight the situation in one of the new Member States.
Jaroslav Hála, Research Institute for Labour and Social Affairs