Private Investigations: Are Employers Allowed to Scan Employee E-Mails?

Tribunal I of the Criminal Court of Appeals issued an important ruling on the employer’s ability to scan employee e-mails and the admissibility of such communications as evidence in criminal proceedings.

In the case at bar, the owners of a well-known brand of women’s clothing brought a criminal action against two former employees on charges of breach of fiduciary duties and self-dealing. Complainants alleged that the defendants were in charge of negotiations over a contract with a foreign company but ultimately closed the deal privately for their own benefit. As evidence of the accusation, complainants produced printouts of e-mails exchanged between the defendants and the foreign company.

The defense challenged the admissibility of these e-mails as evidence, on the grounds that access to their electronic communications by the employer violated their constitutional right to privacy.

The Criminal Court of First Instance sustained the defendant’s motion and excluded all evidence relating to employee communications. The complainant challenged the ruling on appeal; the Criminal Court of Appeals upheld the decision to rule out employee emails as admissible evidence.

In so deciding, the Court of Appeals held that constitutional privacy protection extends to employee e-mails, regardless of whether such correspondence is sent from a private or a corporate account. From the moment an employee is assigned a specific account, with an individual user name and a security password, all communications made to and from that account fall within the realm of constitutionally protected privacy.

Moreover, the Court of Appeals disregarded company policy warning employees that all communications could be monitored by corporate management. In this sense, the Court ruled that employee consent to this type of policies is not free and spontaneous, thus does not validate an   employer monitoring e-mail correspondence.