Analysis of labor e-mail's privacy

There is no an specific regulation regarding the use of the e-mail yet in Argentina, therefore there are doubts and different opinions regarding the nature of e-mail accounts provided by the employer to the employee for work purposes (the “labor e-mail”).

We are currently dealing with two different interpretation criteria:

Ø one position supports the theory that the labor e-mail is a work tool, and therefore employers can control the use of the labor e-mail in accordance with the employers´ control powers provided by Labor Contract Law No 20,744 (“LCL”); and

Ø the other position considers that the labor e-mail is equivalent to the employee’s post mail and is therefore protected by the constitutional right of privacy and not subject to the employer's control.

Both positions have been reflected in bills that establish specific regulations for e-mails.

The bill drafted by the Secretary of Communications states that “When the e-mail account is provided by the employer as a consequence of the employment relationship, the ownership of the account belongs to the employer...”.

This initiative empowers the employer to “...access and control every information existing in the labor e-mail, as well as forbid the use for personal matters...” clarifying that to exercise this control, the employer must previously notify the employee of the conditions of use and access to the labor e-mail and the employer's powers of control.

The other bill, drafted by deputies Saúl Ubaldini and Pablo A Fontdevilla, is in an advanced parliamentary status since it was approved by the Deputies Chamber on July 12, 2002.

This latter bill states that: “When the e-mail account is provided by the employer to the employee... it will be considered as granted for his/her exclusive use...”, guaranteeing the inviolability of the employee’s e-mail communications by comparing them with the employee’s post mail.

Although there is no specific regulation on this subject, the case law of the Argentine labor courts has ruled over conflicts related to the use or abuse of the labor e-mail and its control.

The Argentine Labor Court of Appeals, Tribunal VIII, in a ruling dated March 27, 2003, considered that “The e-mail is a work tool nowadays...” and that this matter should be analyzed in accordance with section 70 of the LCL which “...empowers the employer to perform personal controls on the employees to protect the company’s property”.

However, in this case the employee's claim succeeded because the employee was not notified that the labor e-mail was exclusively provided for working purposes and that the company could control the e-mail communications. The Court considered that the lack of notification could have created the employee's “ false expectation of privacy...”.

A recent ruling from the Argentine Labor Court No 24 dated May 27, 2003, also classified the labor e-mail as a “work tool”, and considered that the conduct of a female employee who “...repeatedly and constantly used her work schedule and work tool (the company’s e-mail system) despite her employer’s warnings...” to receive and send pornographic material was a justified cause of dismissal.

This decision was appealed by the plaintiff and is currently being considered by the Labor Court of Appeals.

Although there are few court decisions on this matter, it is possible to observe a tendency in the Argentine labor courts to consider labor e-mail as a “work tool” and therefore after prior notification to the employee, admit the employer's ability to monitor labor e-mail usage.

Nevertheless, the advanced parliamentary status of the bill that compares labor e-mail with post mail creates doubts on the future solution of this matter.