The use of the internet is an indispensable tool of the modern workplace in many instances. Internet access facilitates efficient work, and often makes it easier for employees to perform their tasks. However, easy access to the internet presents many opportunities for employees to engage in conduct which threatens the employer’s interests. To protect their interests, employers must monitor and regulate their employees’ use of the internet at work. The right to impose and enforce rules and policies in the workplace is one of the fundamental features of the employment relationship.
There is legislation which is relevant to this topic. The Constitution provides that employees have a right to a measure of privacy in the workplace, which may extend to having the privacy of their workplace internet use respected in certain circumstances. This right must however be balanced against an employer’s competing rights, such as the right to engage in economic activity, which may require that internet use be limited and controlled.
The Regulation of Interception of Communications and Provision of Communication Related Information Act (RICPCIA), makes it a criminal offence to monitor an employee’s electronic communications (including data exchange over the internet), unless certain exceptions to the general prohibition apply. There is also legislation which gives rise to civil and/or criminal liability in the event of an employer not monitoring his employees’ internet use in certain circumstances (most notably the Employment Equity Act, and the Films and Publications Act).
There are therefore multiple important reasons for an employer to monitor and control employees’ use of workplace internet facilities. Some of these reasons include the following:
Internet abuse may impact negatively on employees’ productivity, as well as compromising the speed and efficiency of the employer’s internet resources for legitimate business reasons. This is an especially real concern given the ease and speed with which large files (like pictures and music) can be shared. This sharing feature is the defining feature of Web 2 and social networking sites are geared towards facilitating this. It also may leave a business vulnerable to threats to its professional reputation by employees posting inappropriate content to such sites.
The management of the risk of employer liability to third parties is another major reason for monitoring employees’ use of workplace internet facilities. Employers may be held liable to third parties through the doctrine of vicarious liability. This doctrine provides that employers may be held liable for the wrongful acts of their employees, if they are committed in the course and scope of their employment. This is to encourage employers to take active steps to prevent their employees causing harm to others. Whether employees are acting in the course and scope of their employment is assessed very broadly. The employee need not be doing activities specifically authorised by his employer for the employer to be held liable. There have been some noteworthy cases where employers have been held liable for millions through this doctrine because of sexual harassment committed by their employees, which was clearly not conduct authorised by the employer.
Also, in terms of the Employment Equity Act, an employer may be held liable for harm caused by employees who send racist or sexist material over the workplace email system. The employer must have rules and policies in place making it clear that such conduct will not be tolerated and the employer must respond appropriately if it gets wind that such material is being shared or distributed.
If child pornography is accessed by way of the employer’s internet facilities, by an employee, the employer could be held criminally liable for this. The Films and Publications Act imposes positive obligations on employers who know or even just suspect that this is happening. This Act pertains just to child pornography. Accessing adult pornography is not a criminal offence and so although viewing adult pornography at work may be a disciplinary offence, and may give rise to damages claims in terms of the Employment Equity Act, it will not give rise to criminal liability for the employer.
It is possible for employers to protect themselves against liability, and at the same time respect the employees’ rights, by having the appropriate policies in place. The policies should be clear and explicit and should deal with issues such as the ownership of electronic devices provided by the employer and whether they can be used off site, the extent to which private use of the devices and facilities is allowed, the employees’ expectations of privacy and prohibited use of the facilities. Such policies are essential to protect both the employees and the employer in the workplace.
Nicci Whitear-Nel (BA LLB)
Senior Lecturer – School of Law, University of KwaZulu-Natal