Consultation on Monitoring of Employees at Work ~ The Way Forward Presentation by Raymond Tang Privacy Commissioner for Personal Data Hong Kong SAR Privacy Issues Forum 28 March 2003 Wellington, New Zealand 1

Privacy Objectives of the Code To facilitate good employee / employer relations To take any ambiguity out of the personal use of employer provided communications equipment in the workplace To remove the element of any unpleasant surprise To encourage employers to notify their employees of their workplace surveillance practices in an Employee Monitoring Policy 2

Simply stated: Let the employer be fair; let the employee be aware. 3

Consultation Exercise Results 49 Submissions in support of a Code or Guidelines 10 Submissions Opposed to either a Code or Guidelines 10 Submissions Non-committal 4

The Public Consultation Exercise - Feedback from Employers The business environment factor influenced the tenor of some submissions ie. Now is not a good time to burden companies with another Code The employer / employee relationship is characterised by mutual respect and trust. The Code would adversely impact upon this ie. it was not the Hong Kong way There can only be a limited expectation of Privacy in the workplace 5

Problems Envisaged by Employers in Implementing the Code (1) The Principle of Proportionality That is, the level of surveillance in the workplace should be commensurate with risks, and the benefits to be derived from it. But ~ Sounds good in theory but is problematic in practice ~ How do management objectively measure proportionality to determine the type and / or level of surveillance to be engaged? 6

Problems Envisaged by Employers in Implementing the Code (2) Accessing of Email traffic log as distinct from Email content But ~ Sounds good in terms of privacy protection but less good in terms of managing the communications equipment of the organisation ~ If you don t open the Email how do you know whether it contains inappropriate material? ~ Unless the Email is opened the employer runs the risk of vicarious liability 7

Employers Views - A Summary There s no evidence of a problem, so why is the PCO putting forward a solution? Strong resistance to the drafting of a Code More general support for guidelines which were translated as offering greater flexibility May involve the PCO in acting ultra vires The Employers Federation of Hong Kong felt that it was not appropriate for the PCO to pioneer in the field of workplace surveillance ie. no mischief of significance 8

The Public Consultation Exercise - Feedback from Professional / Trade Associations and Government Departments Generally more supportive of the draft Code but still a preference for Guidelines Principle of Transparency widely supported, but reservations about the Principle of Proportionality Generally greater support for the view that employees should have a reasonable expectation of privacy in the workplace 9

Lessons Arising from the Consultation Exercise (1) Not all Codes are created equal - marked difference in the acceptance of the Code on HRM from employers The need to strike a balance between the privacy interests of the individual with the employers proprietary rights The need to justify a Code with hard evidence that it addresses a real problem Early ideas regarding the draft Code could have been piloted among employer representatives before the consultation exercise 10

Lessons Arising from the Consultation Exercise (2) Codes need buy- in from main parties to win support Buy- in is influenced by the perceived need for a Code and whether it is seen to be practical to operationalise especially in a adverse economic environment Ability to get constructive feedback from sectors of the community that will be impacted by a Code eg. absence of feedback from organised labour and SME s in Hong Kong. What is to be done? No matter how well intentioned, LRC recommendations need to be considered and carefully appraised 11

The Way Ahead (1) The Principle of Transparency - appears under the PD(P)O to be something that there can be no strong legal counter argument against Notification requirements will likely be enshrined in a Code and added to the existing Code of Practice on Human Resource Management 12

The Way Ahead (2) The Principle of Proportionality - rather more problematic. Difficult to operationalise and may create more problems than it solves Issue Guidelines that will offer a framework to employers in terms of promulgating their own set of in- house rules and an Employee Monitoring Policy 13

The Application of the Code to Employment of Foreign Domestic Helpers (FDH) Some 250K FDH in Hong Kong - home is the workplace Issue of covert monitoring Notification requirements Foreign consulates did not really respond to the consultation exercise in spite of the PCO s best endeavours 14

Employer Employee 15