Australia: Potential Further Restrictions on Monitoring of Employee Email And Internet Use

By Anthony Longland, Alicia Taranto and Anna Oldmeadow

An exposure draft concerning the regulation of surveillance of employees at work has recently been released for public comment by the New South Wales Attorney-General.

The draft Workplace Surveillance Bill 2004 (Draft Bill) prohibits certain forms of covert surveillance unless such surveillance is conducted pursuant to a covert surveillance authority. The Draft Bill extends the restrictions formerly imposed by the Workplace Video Surveillance Act 1998 (Act) in that it imposes restrictions not only on 'video surveillance' in the workplace but more broadly on 'camera surveillance', 'computer surveillance' (surveillance of the input, output or other use of a computer by an employee) and 'tracking surveillance' (surveillance of the location or movement of an employee).Importantly for many employers, the Draft Bill introduces legislative restrictions on the ability for employers to monitor their employees' email and internet use, and restricts and regulates the blocking by employers of emails and Internet access of employees at work.

If the Draft Bill is enacted in its current terms, employers should consider ensuring that:

• prior to commencing employment, new employees are advised that their email and internet use will be the subject of surveillance

• if they have not already done so, employers should install a log-in notifier advising employees that their email and internet use is subject to monitoring

• any log-in notifier requires the employee to actively acknowledge that they have been notified of the computer surveillance

• email and internet policies are reviewed and updated to ensure that they clearly state that email and internet use is subject to monitoring, and outline the circumstances in which emails will be prevented from being delivered or access to websites will be refused

• all employees are notified of any alterations to those policies as a result of that review, and

• all employees are immediately notified of any emails which are blocked from delivery.

The Draft Bill states that the Bill seeks to repeal and replace the Act which only regulated video surveillance. In contrast, the Draft Bill applies to the surveillance of an employee which is defined to be camera, computer and tracking surveillance.

Camera surveillance is defined to be the monitoring or recording, by electronic means, of visual images of employees (such as by means of a closed-circuit television system).

Computer surveillance is defined to be the monitoring or recording by means of software or other equipment of the information input or output, or other use, of a computer used by an employee (including by not limited to the sending and receipt of emails and the accessing of internet websites).

Tracking surveillance of an employee is defined to be the surveillance of the monitoring or recordings of the geographical location or movement of the employee by means of an electronic device (such as tracking of the employee or of any vehicle driven by the employee by means of a Global Monitoring System tracking device).

Clause 8 of the Draft Bill makes it an offence (subject to certain exceptions and a limited defence for security in the workplace) for an employer to carry out or cause to be carried out covert surveillance of an employee of the employer (or of a related corporation of the employer) at work unless the surveillance is both:

• carried out or caused to be carried out solely for the purpose of establishing whether or not the employee is involved in any unlawful activity at work, and

• authorised by a covert surveillance authority.

Penalty: 50 penalty units (ie $5,500).

Any surveillance of an employee which is not notified surveillance is defined to be covert surveillance of the employee.

In order for the monitoring of email and internet use to be notified surveillance (and therefore not covert surveillance for the purposes of the Draft Bill):

• the employee must have been notified in writing of the intended surveillance at least 14 days (subject to agreement with the employee to a lesser period of notice) before the intended surveillance, and

• in addition, in the case of computer surveillance, the employee is given notice in advice of the surveillance, and of the nature of the surveillance, that notice being given either:

In respect of new employees the Draft Bill also provides that an employee who is first employed less than 14 days before the intended use of surveillance is taken to have agreed to a lesser period of notice of the intended surveillance if the employee is notified in writing of it before commencing work.

Surveillance will also be notified surveillance if the employee to be monitored has agreed to the use of the surveillance at the premises or place where the surveillance is taking place for a purpose other than surveillance of employees and that surveillance is carried out in accordance with the agreement. Such 'agreement' can be established if a body representing a substantial number of employees has agreed to the surveillance on the employees' behalf.

Should an employer wish to apply for a covert surveillance authority, they will need to show it is for the purpose of establishing whether one or more particular employees are involved in any lawful activity at work (clause 14).

Clause 11 of the Draft Bill provides that an employer must not prevent or cause to be prevented, delivery of an email sent to or by, or access to an internet website by, an employee of the employer (or of a related corporation of the employer) unless:

• the employer has a policy on email and Internet access that has been notified to the employee, and the employer is acting in accordance with the policy in preventing delivery of the email or preventing access to the website, and

• in addition (in relation to preventing the delivery of an email) the employee is immediately notified by the employer (by email or otherwise) that the delivery of the email has been prevented.

Penalty: 50 penalty units (ie $5,500).

The Draft Bill also provides that notification of email and internet policies be written notice by means of a computer used by the employee for email or internet access when the employee logs onto the computer or starts a program that facilitates that email or internet access.

Exceptions to the need to notify in relation to non delivery of emails exist where:

• the email in question is a commercial electronic message within the meaning of the Spam Act 2003

• delivery of the email will result in a person being menaced or harassed, or

• the content of the email (or any attachment) is such that it would be regarded by a reasonable person as being offensive.

• Clause 9 prohibits the surveillance by an employer of an employee at work in a change room, toilet facility or shower or other bathing facility. Such surveillance is currently prohibited under the Act. Penalty: 50 penalty units (ie $5,500).

• Clause 10 prohibits the surveillance by an employer of an employee not at work by means of a device used for notified surveillance of the employee at work. In other words, if an employee's movements are routinely tracked by electronic means at work (and the employee is aware of this), such activity may not continue once the employee leaves work. Penalty: 50 penalty units (ie $5,500).

If an employer already uses log-in notifiers to alert its employees that use of the company's email system and internet is monitored, it seems that such surveillance would be notified surveillance for the purpose of the Draft Bill.

In order to ensure that the computer surveillance of new employees is also notified surveillance for the purposes of the Draft Bill if the Draft Bill is enacted in its current form, employers should also ensure that new employees are advised of the surveillance prior to commencing employment.

If employers do not already do so, they should consider ensuring that the log-in notifier requires the employee to actively acknowledge that they have been notified of the computer surveillance. For example the log-in notifier should default to 'no' requiring the employee to actively click on 'yes' to acknowledge the notification and gain access to the system.

Should the Draft Bill be enacted in its present form employers should also ensure that any existing email and internet policies are reviewed and updated to ensure that they clearly outline the circumstances in which emails will be prevented from being delivered or access to websites will be refused.

In conducting this review employers should be aware that the Draft Bill specifically provides that an employer's policy on email and internet access cannot provide for the preventing of delivery of an email or preventing access to a website merely because the email or website contains information relating to industrial matters.

Should this review result in any alterations to those policies all employees should be notified of the changes.

Further if an employer does not already do so it should ensure that employees are immediately notified (subject to the exceptions discussed above) of any emails which are blocked from delivery.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.