Is employee email monitoring legal in China?

Author: Erex Chen, a partner from Mylink law, provides daily legal service for foreign-invested companies and oversea companies, as well as large and media-sized Chinese companies, including investment and trading projects in China by foreign-invested companies and oversea companies.

We are frequently asked by the clients that if the company has the right to monitor the employee’s corporate email account, and will it be legal in China? 

The monitoring of employee’s behavior during the working time by the employer, including the monitoring of corporate email account, QQ, MSN, etc, has become a controversial topic worldwide, which relates to the balance of the interest between the employer’s right of supervision over the employees and the personal privacy the employee enjoys.

The Employer’s Opinion:

• The corporate email account is part of the company asset. So the company shall have the right to supervise the use of the corporate email account.
• Through monitoring the use of corporate email account, the employer is able to find and prevent the employee from disclosing company confidential information (such as client’s data, financial data, company resolution, etc).
• Through monitoring the use of corporate email account, the employer is able to investigate the malpractice engaged by the employee.
• The monitoring can prevent the employee from engaging in non work-related matters so that the working efficiency can be improved.

The Employee’s Opinion:

For employee, the big concern is the email monitoring infringes the right of freedom in communication and the employee’s privacy, in particular the monitoring is conducted without prior notice.

In 2013, the Foshan Intermediary Court in Guangdong heard a case relating to a labor dispute where the employer terminated the labor contract with the employee due to violation of company regulation. The ground in relation to violation of regulation is from the employee’s emails monitored by the employer. The employee filed the labor arbitration and then the case went through the arbitration, the first court instance and the second instance. In this case, one of the defenses raised by the employee is that the employer monitored the employee’s email without his consent and such behavior has infringed the employee’s right of freedom in communication and privacy.

In this case, the court opinion by in the first instance and the second instance varies:

The court in the first instance supported the defense raised by the employee. In the court judgment, the court concludes that people shall have the right of freedom in communication. Without legal procedure, such right shall not be deprived. The employer is not granted with any judicial power so any monitoring to the employee’s email without notice shall have infringed the employee’s right. 

Accordingly, the evidence obtained shall not be used as ground not in favor of the employee.

Following the court judgment, the employer filed the appeal immediately and argued that it shall have the right to monitor the staff’s corporate email account. In the final court judgment, the court did not recognize the illegality towards the employer’s monitoring of staff’s email but focused on the examination of the emails obtained by the employer and then determine if any malpractice behavior exists.

Therefore, we conclude that the change of the court opinion has indicated that the defense of infringement of the right of freedom in communication and privacy by the employee has actually not been supported by the court.

However, this does not mean that the employer will not run any risk in future’s practice of email monitoring. According to our experience, we suggest the following measures shall be taken by the employer to make sure the legality and safety of such behavior:

1. If the email monitoring is necessary for the employer, the company regulation or staff handbook shall be made in respect to the use of corporate email account. Generally speaking, such regulation shall at least cover the points below:

• It shall be emphasized that corporate email account belonging to asset of the company.

• It shall be clarified that the corporate emails account will only be used for work purpose and not for personal communication. Any personal and privacy information shall not be sent or received through corporate email account.

• The company reserves its right to monitor the corporate emails.

2. If any malpractice is found through the email monitoring, we suggest the company investigate further and collect additional relevant evidences to support the decision made by the company.
3. It shall be avoided that the company makes any disciplinary decision only based on the emails obtained through monitoring.