Office monitoring code 'too vague'

The draft of a code on the monitoring of workers has been criticised by legal experts and an employers' group for being too vague and not going far enough to address potential employer liability issues.

While the proposed code, unveiled last week by the Privacy Commissioner for Personal Data, has been welcomed, concerns have been voiced about grey areas.

Gabriela Kennedy, head of the information technology group at the UK-based law firm Lovells, said: 'Unless there is a specific disclaimer in an e-mail that the contents express the employee's own personal views and not the company's, the company could potentially be in trouble when inappropriate content is distributed to third parties.'

Under the draft code, employers cannot monitor the content of e-mail, Internet or telephone communication unless it serves a specific business purpose or there is evidence of 'serious wrongdoing'.

Elizabeth Bowes, of the litigation team at law firm Allen & Overy, said: 'The term 'serious wrongdoing' needs further exploration - does it mean crime-like things or breaches of the employment contract?'

Allen & Overy partner Simon Berry said the code would create an element of moral obligation on employers and be useful in the 'reputation context', but parts needed to be fleshed out.

'It's rather vague - in many places it talks about things being 'reasonably necessary' and 'reasonably satisfied' and that 'monitoring is proportionate to benefits' - these are very difficult concepts to pin down,' he said.

'There will be uncertainty as to how to apply it on a day-to-day basis.'

Both Mr Berry and Ms Bowes said it was best not to empower the code with statutory power as the issue was 'an evolving balancing act' with an inherent uncertainty.

Employees Federation of Hong Kong executive director Jackie Ma Lai Bik-lin said the code merely created more ambiguity, which was dangerous if it was endowed with legal implications.

'We don't think there is a need for a code and from a superficial study, it seems they are creating more complications and grey areas and leaving a lot of room for exploitation,' Mrs Ma said.

'How will they manage to address all the exemptions?'