Hong Kong: Laptops For Work – Expectations Of Privacy

Last Updated: 31 July 2011
Article by Pádraig Walsh and Richard Keady

As an international financial centre, Hong Kong has one of the most transient and mobile workforces and one of the highest concentrations of information technology (IT) use in the workplace. Therefore, it is not surprising that when senior personnel leave (particularly, if it is to join a rival organisation) all sorts of issues can arise as to the whereabouts and ownership of information stored on devices such as laptops, mobile email and smartphone devices and the like.

The recent case of Re JBPB & Co and Ors [2011] HKEC 844 is another in a line of cases arising out of disputes between employers and ex-employees over the ownership of information stored on IT devices used for work. As is common in such cases, delicate issues can arise concerning access to an employee's confidential information (not to mention personal data privacy).

Key points

  • Employers need to have clear policies in place regarding the use to which their IT equipment can be put by employees.
  • Such policies should be considered carefully and should, so far as possible, reflect the culture of the employer's workplace.
  • Employers should be transparent with their employees about their policies regarding the use to which IT equipment should be put.
  • Employers should provide employees with regular training and supervision regarding their IT policies (and keep documents and records of such training and supervision).
  • An employer's internal operating procedures policies and manual do not (of themselves) entitle it to ignore privacy and personal data issues.
  • The law of confidence and reasonable expectation of privacy is an evolving and difficult area of the law; good independent legal advice is required.
  • The law of personal data privacy is also complex and requires good independent legal advice.
  • The fact that a document is regarded by its owner as confidential does not (of itself) mean that it can be withheld from production in subsequent litigation between an employer and employee. Confidential documents relevant to that litigation have to be preserved by whichever party has possession, custody or power over them. As soon as there is a real likelihood of a dispute arising, legal advice should be taken.
  • If an employee has concerns about the security and privacy of their personal communications at the workplace then he or she should avoid using the IT system at work for personal use. This is particularly true of senior personnel. This may be highly inconvenient but prevention is generally better than cure.

Background and facts

The plaintiff was an accountant who had worked for the defendant firm in Hong Kong. Prior to joining the defendant the plaintiff had been a partner in another firm in Hong Kong. The plaintiff ceased to work for the defendant as from July 2010 and moved to another firm.

On joining the defendant in June 2007 their IT personnel allegedly helped the plaintiff transfer and copy documents from an old laptop provided to him by his previous firm to a laptop provided by the defendant. On being given a new laptop in 2009 by the defendant once again all the information was allegedly transferred from the earlier laptop to the new one (the laptop).

The information claimed by the plaintiff to have been transferred to the laptop included:

  • confidential information relating to the business and clients of the plaintiff's previous firm that "crossed over" to the defendant;
  • confidential information relating to the business and clients of the plaintiff's previous firm that did not cross over to the defendant; and
  • the plaintiff's confidential and personal documents (of the sort not infrequently generated by personnel at work).

It was not disputed that documents on the laptop relating to the defendant and its clients belonged to the defendant.

On the day of the plaintiff's departure from the defendant's office, the laptop was in the possession of the defendant. The defendant took the view that the laptop belonged to it and was only to be used for business use in accordance with the defendant's Office Procedures Manual (the OPM). The plaintiff's position was that the defendant knew that the laptop also contained confidential and personal documents belonging to him.

The plaintiff commenced legal proceedings against the defendant in order to obtain (amongst other things) an injunction to restrain the defendant from disclosing or accessing or copying "confidential documents" contained in or stored on the laptop and to deliver-up or destroy any such confidential documents and copies thereof. The plaintiff also sought an order for the delivery-up of the laptop into the possession of an independent solicitor to assist with the process of securing and protecting the confidentiality in the confidential documents ("the court orders").

Issue

The primary issue was whether the plaintiff was entitled to the court orders to protect the confidential information on the laptop pending the outcome of the trial in his action against the defendant.

Decision

In an interesting judgment, the judge traced the history of claims for breach of confidence and how it had developed from claims arising out of confidential relationships, in which confidential information was imparted, to claims based on a reasonable expectation of privacy. The judge cited with approval the following extract from a leading English Court of Appeal case on point (Imerman v Tchenguiz & Ors [2010] 2 FLR 814):

"It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a Claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised Defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the documents (or any copy), and also be able to enforce the return (or destruction) of any such document or copy."

Given that the grant of the court orders would have effectively disposed of the plaintiff's claims (because it was by no means certain that the plaintiff would continue with a claim for damages if the court orders were granted), the plaintiff was required to show that he was "likely to succeed at trial" with regard to his claim to a reasonable expectation of privacy in respect of the confidential information on the laptop.

The judge decided that, save where undertakings could be agreed between the parties as to the confidential information (such as communications regarding the plaintiff's personal affairs), the plaintiff was entitled to the court orders that he sought, subject to a suitable form of words being approved by the court. The plaintiff was not entitled to court orders with respect to that confidential information relating to the business and clients that had crossed over to the defendant.

Interestingly, the judge had this to say with respect to the argument advanced on behalf of the defendant that the OPM entitled it (amongst other things) to search and investigate "business equipment, including computers, desks and lockers belonging to the Firm" (including computer files):

"In my view, the mere fact that documents, which the Plaintiff can otherwise seek protection by an action for breach of confidence, are stored in a computer owned by the 1st Defendant who is entitled to search it for documents or information belonging to it, cannot deprive the Plaintiff of the reasonable expectation of privacy in respect of his own documents, and the consequent right to maintain a claim for breach of confidence against the Defendants should such right be infringed."

"I consider that Clause 2.8 of the OPM only permits the 1st Defendant to search, inter alia, the computer of its staff (or former staff) for files or documents properly belonging to the 1st Defendant for its business purpose, but does not entitle the 1st Defendant to search for, look at, copy or disseminate the contents of the Plaintiff's private or confidential documents contained therein."

Postscript

Our understanding is that the defendant has applied for permission to appeal the court orders granted by the judge and that application will be heard by the judge in August 2011. The application and, if granted, the substantive appeal, is likely to test (among other things) the ambit of an employee's expectation of privacy as against the rights of an employer in such circumstances under Hong Kong law.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions