E-technology is an ever-growing force in today's business environment. However, while email and the Internet can undoubtedly make the workplace more efficient, employee misuse can create legal liabilities for employers and may cost companies millions of dirhams a year in bandwidth expenses and lower productivity levels. It may also lead to the disclosure of trade secrets and other confidential information related to the workplace. Unfortunately, statistics have proved that employees do not take the same care when composing an email as they would when writing a letter.
For these reasons, many employers have concluded that there is a need to monitor computer use by employees; but without a full understanding of the risks, they may expose themselves to potential lawsuits. It must thus be considered whether employers can control or monitor employee use of e-technology without being exposed to potential claims for violations of privacy rights.
At present, UAE law does not address this issue. While the UAE Labour Law (8/1980) does not provide for an employee's right to privacy in relation to emails sent or received at work, neither does it set limitations on monitoring employee use of e-technology. However, the lack of specific laws or regulations on the issue means that the UAE Constitution will apply. Article 31 of the Constitution provides: "Freedom of communication by post, telegraph or other means of communication, and the secrecy thereof, shall be guaranteed in accordance with the law." A potential argument in the employees' favour is that emails may qualify as a 'means of communication', and therefore an employer who directly accesses such messages may be guilty of violating the employee's right to privacy guaranteed under Article 31. However, in the absence of any court rulings on the issue, it is almost impossible to assess the validity of this argument.
When arguing for their right to privacy, employees tend to forget that the sole reason for providing them with access to e-technology is to improve the efficiency of their work. In order to minimize the risk on their part, employers should inform their employees that email and internet facilities may be used only for work purposes and not for private use. Employees should also be informed of any monitoring practices in place, and warned that the company has the right to access all stored information, even where protected by a personal password. The employees should acknowledge their consent by signing a policy on proper computer use drawn up for this purpose. By following these guidelines, employers will prevent potential claims for violation of their employees' right to privacy.
In the absence of specific rules on the issue, the state of the law remains uncertain and there are still some grey areas. However, the following are some practical tips to help employers minimize the risks:
- Draw up and implement a policy on proper computer use. This should make clear that the system belongs to the employer and that employees should have no expectations of privacy. All e-technology is provided by the company to assist employees in carrying out the company's business activities, and hence such facilities should only be used for work-related purposes.
The policy should also state that the employer reserves the right to access and disclose the content of all electronic communications conducted via the company's network. Employees must waive any right to privacy in such communications, and consent to their access and disclosure by authorized company personnel.
- Ensure that all employees sign the policy and thereby give their written consent to such monitoring. Implied consent is not sufficient, even if the policy makes clear that use of the company's e-technology will constitute recognition and acceptance of the policy's provisions.
- Determine the penalties for specific policy violations, ensure all employees are notified of them and enforce them consistently.
The United Arab Emirates must enact specific laws or at least amend existing laws to address the issues created by today's e-business environment. In the meantime, however, there seems no reason why the UAE courts should object to such policies.
For further information on this topic please contact Samer Qudah at Al Tamimi & Company by telephone (+971 4391 2444) or by fax (+971 4391 6864) or by email ([email protected]). The Al Tamimi & Company website can be accessed at www.tamimi.com and www.internetcitylaw.com.