Chinese employee monitoring laws

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Q: Do employers have the right to monitor employees’ computers, such as desktops, laptops, servers and their Internet activities?
A: Yes, employers have this right.

Local legislations give employers the right to monitor company’s property usage of computers, laptops, cell phones and other electronic devices given to employees if last ones are informed about the monitoring in the office.

«For the monitoring on employee’s phone call and chat in working time, there’s no corresponding regulation in law..». (by You Yunting in ‘Infringement on Privacy? Comment on Enterprise’s Monitoring of Employee’s Chat’, ‘Bridge IP Law Commentary’).

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«China’s Safe Production Law, which imposes an affirmative requirement that a company implement affirmative monitoring procedures for its workplace for safety reasons.»
Mentioned below « provisions provide employers with additional grounds to assert that email and Internet monitoring should not be viewed as an infringement of employees’ right of privacy.»
(‘Email and Internet Monitoring/Video and Physical Surveillance’ by Morrison & Foerster LLP, ‘GLOBAL EMPLOYEE PRIVACY AND DATA SECURITY LAW’).

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Q: Do employers have the right to monitor keystrokes, email’s content, and screens?
A: Yes, employers have this right.

Employers have the right to monitor their property, such as: computers, phones and other electronic devices provided to the employees, as well as email address provided by employers, but only if employees are enlightened about monitoring.

«In relation to email and Internet monitoring, employees’ evolving right to privacy must be understood in the context of the employer’s obligation to prevent misuse by employees of the employer’s computer system.
Relevant statutory provisions include:
• The Measures for the Administration of Security Protection of International Linkups of Computer Information Networks, which impose affirmative obligations on a company to report to the relevant governmental agencies for any illegal activities carried out over its computer information system.
• The Interim Regulations for Administration of International Linkups of Computer Information Networks, which requires companies and individuals to comply with Chinese laws and regulations; implement secure online systems; not engage in illegal activities; and not produce, retrieve, reproduce, or disseminate information that would hinder public security or that is obscene or pornographic.

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• China’s Safe Production Law, which imposes an affirmative requirement that a company implement affirmative monitoring procedures for its workplace for safety reasons.». (‘Email and Internet Monitoring/Video and Physical Surveillance’ by Morrison & Foerster LLP, ‘GLOBAL EMPLOYEE PRIVACY AND DATA SECURITY LAW’).
«.. if an employee uses personal e-mail or IM and saves records of such personal online activity on a company-owned computer, the employee can then be deemed to have granted consent for access to the saved content (which could otherwise be deemed private information). The employer may then access and read such saved activity, as company IT equipment is the property of the employer. However, under such a circumstance, it is important that the employer not disseminate personal communications.» (By Ron Cai, Jojo Bai and Kevin Moore in ‘Employee Online Privacy in China’).

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Q: How employees are protected in this situation?
A: There are such laws that protect employees’ personal data.

Employees are only protected by law in case of using their personal computers, telephones or any other electronic devices, but not company’s property. Although none of personal employees’ data can be monitored by employer without notifying the employees.

«In China, the 1994 Regulations on Safety and Protection of Computer Information Systems (the “Regulations”) and the 1997 Administration Rules on Safety and Protection of International Connection by Computer Information Networks (the “Administration Rules”) set forth fundamental rights and rules relating to privacy protection in Internet environments. The Regulations and the Administration Rules, together with other regulations regarding information technology (IT), provide clear instruction for e-mail service providers regarding privacy protection.
China’s Constitution guarantees freedom and privacy of correspondence. Given a systemic lack of judicial interpretation beyond the provisions of the Measures and the Constitution, an employer’s ability to monitor employee online activity is thus dubious». (By Ron Cai, Jojo Bai and Kevin Moore in ‘Employee Online Privacy in China’).

Q: What professional lawyers suggest?
A: They suggest being reasonable when applying monitoring tool at the working place.

Professional lawyers and experts on Chinese privacy law suggest formulating proper and clear monitoring policy to the employees. And certainly the fact of monitoring has to be announced to all the employees. Also they give some additional suggests:
«An employer may formulate an IT policy for inclusion in its employee manual, specifying that personal online activity not related to work is prohibited during work hours (and/or on company IT equipment). Such a policy should specifically prescribe activities for which use of the company e-mail system is deemed appropriate (if applicable). The employer may require its staff to read the employee manual carefully and acknowledge, in writing, having done so before being formally hired. Simply having such policies posted on the company intranet may not be sufficient. (By Ron Cai, Jojo Bai and Kevin Moore in ‘Employee Online Privacy in China’).
« As to the regulations, we suggest the company to clarify that no private matter shall be handled by the employees in working time or no office equipment shall be used for personal matters; furthermore, it’s also suggested to inform the employees that the company will record the employee’s using of the company computer, software or phone call. Surely, the aforesaid regulation shall be contained in the Employee Manual.
According to the Labor Contract Law, the passing of internal labor discipline shall through the discussion of workers congress or all the employees who will raise their own programs for revision or opinions, after that the draft shall be submitted to the labor union or workers representative. In practices, we would like to advice the company to go through the procedures mentioned above and publicize the rules for public opinions. When the draft passes after the public opinion, the signature for acceptance by the employees are also necessary for the guarantee of its legality.

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IV. The privilege to access the monitored information shall also be set, such as regulating only with the signing by the management above the deputy general manager could thereby granted the authority to check the monitored information, and also such checks shall also be recorded for the prevention of any privacy of employees to be released.» (by You Yunting in ‘Infringement on Privacy? Comment on Enterprise’s Monitoring of Employee’s Chat’, ‘Bridge IP Law Commentary’).

More Information per Country
For more information about it please refer to Info Centre – Legal Aspects, where you can find more information for:
Argentina
Australia
European Union
Indonesia
United Arab Emirates
USA

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Disclaimer
This article provides general information only. This information is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

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