The use of the Internet at work
The emergence and widespread use of NICTs in the workplace brings into competition two fundamental legal principles:
1) the employer’s right to protect himself from abuses committed by staff and
2) the employee’s right to privacy.
It is therefore important to delimit the rights and duties of each.
1. Rights of the employer
The employer, as the principal (Art. 321 d of the Swiss Code of Obligations), may issue internal written rules on the use of the internet and e-mail.
Monitoring by the employer is perfectly legal if it remains punctual, anonymous and random (Art. 26 of Ordinance 3 on the Labour Act). This monitoring cannot be constant and permanent, for example via spyware.
When monitoring the use of e-mail for private purposes, the employer is not allowed to view the content of the message; this must be done on the basis of the addressing elements or confidentiality indications. As a last resort, the employee concerned must be questioned. Only business e-mail (incoming and outgoing) may be consulted by the employer after prior information of the employee.
2. Undue surveillance
Monitoring via log files of an employee without informing the employee and/or without a prior finding of abuse is considered abusive because it violates the employee’s privacy. The same applies to the use of spyware. The employee may then seek legal redress.
3. Sanctions for misuse
If there is a serious suspicion of abuse, the employer may record the data for use as evidence. The processing must be confidential.
In the event of proven abuse, the employee is liable to a disciplinary sanction proportionate to the damage caused to the company, ranging from a warning to dismissal in the most serious cases.
4. Sanctions for criminal use
In the event of criminal use (defamation, economic espionage, disclosure of racist or pornographic material, etc.), the processing of the recorded data and the stored means of proof may only take place with the authorisation and participation of the competent criminal authority. The same authority is responsible for criminal prosecution, without prejudice to the application of disciplinary sanctions for violations of the regulations for use.
