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How private is one’s hard drive at work?

May employers inspect the contents of their employees’ work computers? The European Court of Human Rights recently dealt with this issue in the Libert v. France case. It held that employers may search files that are not clearly identified as private. This decision, however, cannot be automatically applied in the Czech Republic, as it is based on a specific French law containing the condition of files being identified as private. How should the situation be approached in the Czech Republic?

Generally, employees are not allowed to use their employers’ computers or other telecommunication equipment for attending to private matters, unless the employers have granted their consent to such use. This consent may be in any form. Often employers grant consent by means of a provision in an internal policy or an employment contract. In certain cases, the long-term and knowing toleration of such employee behaviour may also be deemed consent.

Employers who have not granted such consent may monitor the content of work computers in a reasonable manner. Namely, they may do so to determine whether employees are observing the general prohibition of using their computer’s technology for personal purposes. While monitoring, however, employers must respect employees’ privacy and not inspect files of a purely personal nature. Before opening a specific file, employers should assess its nature based on its classification in directories, or based on its name. If the personal nature of a file only becomes apparent after it has been opened, the employer has to stop inspecting it immediately.

Czech law is even stricter as regards the monitoring of employees’ electronic mail, including text messages and other instant messages, as such surveillance infringes even more intensely on employee privacy. Employers are generally not allowed to check the content of emails or other messages. They may, however, monitor the number of messages sent and received by employees and their identification data, i.e. the sender, the recipient, and the subject.

Employers may open employees’ emails on the firm’s domain only in exceptional cases, for instance during an employee’s long-term absence, if it is necessary for the protection of the employer’s rights or if the email is deemed to be of a work-related nature. To assess an email’s work-related nature, employers should use solely the address of the sender, the subject of the email, and, possibly, the greeting.

Employers are also obliged to inform their employees of the extent and manner of monitoring of files stored in the firm’s computers and other equipment.