Company X receives a complaint that an employee sends out a lot of pornographic pictures which offend lots of other users. Will it infringe Mr Employee’s right to privacy if it accesses the employees computer to investigate the complaint? Would the situation be any different if the Company wanted to access a work related document (e.g. a report)?
If the document belongs to the Company (i.e. is a business related communication and is not private or personal), issues of privacy infringement do not arise and the Company is free to do what it wants with the information.
Whether or not the employee will be able to claim that the information is “private”, will depend on whether the employee subjectively believed that the communication is his/her private communication and, objectively speaking, society would agree with such expectation. For example, the security guard at the entrance to the Company premises who is monitored by CCTV cannot legitimately expect that what he does at his desk would be regarded as private. If the security guard nevertheless seriously believed that, his expectation will still not be regarded as reasonable and therefore the Company will be entitled to monitor him as his conduct is not private. However, he may legitimately expect that what happens in the cloakroom would be regarded as falling within the private sphere.
In the latter instance, the Company may still be entitled to infringe his right to privacy if its reason for doing so is based on sound business reasons and there is no legitimate way of obtaining the information that the Company is now secretly trying to obtain.
Because it is difficult to distinguish between business and personal communications, and because employees are given access to electronic communications tools owned by the Company to perform their jobs (e.g. email or Internet access), Users should be required to waive any right to the privacy of any communications sent, or received or stored on any storage media or storage device in their possession which they would ordinarily have been entitled to claim in terms of the Constitution.
It is pointed out that employees can freely waive their right to privacy. However, because the right to privacy is guarded jealously as a fundamental right by the Constitution the courts will only allow employees to do so if they have expressly and unequivocally waived their right to privacy. This affects how the Company obtains the waiver, what it tells employees about their right to privacy and on and the wording used.