In today’s world, many people spend their days at a desk, working on a computer and talking on the phone as part of their job. It is unclear, however, to what extent the employer can intercept the correspondence held on the computer or telephone belonging to them. The regulation concerning the matter is highly imprecise and no precedent exists to clarify the issue.
The right to the confidentiality of correspondence is constitutional and the employer is obliged to respect the employee’s right to privacy and refrain from any violation in that respect. It is forbidden to intercept the office telephone or computer without the knowledge or consent of the employee using it.
Nevertheless, the employer might wish to access the employee’s correspondence in order to ensure that their employees are loyal, use the corporate resources economically and use their time at the workplace efficiently or for the purposes of organizing work during an employee’s absence.
While the violation of confidentiality of correspondence is a criminal offence, not every interception to the correspondence constitutes an infringement, as the message must be confidential and a violation of that confidentiality must occur.
The employee’s correspondence is not confidential and it may be intercepted on the condition that the employment contract or the organization rules establish when, for what purposes and to what extent the data in the messages may be processed. The degree to which the constitutional right may be waived, however, has not been established in any regulation or precedent.
Work-related correspondence can be intercepted insofar, as prescribed in the employment contract. Personal correspondence, however, is another matter altogether. On the one hand, Estonian Data Protection Inspectorate suggests that the interference must be proportional, i.e. the company’s interest (e.g. keeping corporate secrets) must outweigh the right to confidentiality of correspondence. On the other hand, the Estonian law of employment is based on the principle of private autonomy and thus, an employee can agree to exclude the confidentiality of correspondence insofar as the correspondence has been held using the employer’s resources.
Employment contracts are private agreements concluded between two parties – employer and employee. The parties to the agreement are equal in every way and may choose to conclude the contract on the basis of their expressional will and the principle of freedom of contract.
Once the message has been delivered, electronically or otherwise, the receiver or the sender can choose whether they want to preserve the message, disclose it to a third party or destroy the message altogether. Until the access to the message has not been restricted, it is not confidential. If the party to a correspondence chooses to disclose all correspondence held on the telephone or computer belonging to their employer, the employer should not be held liable for violating the confidentiality of correspondence.
Consequently, the employment contract should impose rules relating to the extent to which the employer may access the correspondence of the employee. It is not clear, however, whether the provisions of the employment contract may cover personal correspondence and to what degree. It remains to be seen which side the Estonian courts will take once they will have to give a ruling on the matter.
By: Gretta Oltjer