Laptops For Work - Expectations Of Privacy

As an international financial centre, Hong Kong has one of the most transient and mobile workforces and one of the highest concentrations of information technology (IT) use in the workplace. Therefore, it is not surprising that when senior personnel leave (particularly, if it is to join a rival organisation) all sorts of issues can arise as to the whereabouts and ownership of information stored on devices such as laptops, mobile email and smartphone devices and the like.

The recent case of Re JBPB & Co and Ors [2011] HKEC 844 is another in a line of cases arising out of disputes between employers and ex-employees over the ownership of information stored on IT devices used for work. As is common in such cases, delicate issues can arise concerning access to an employee's confidential information (not to mention personal data privacy).

Key points

Employers need to have clear policies in place regarding the use to which their IT equipment can be put by employees. Such policies should be considered carefully and should, so far as possible, reflect the culture of the employer's workplace. Employers should be transparent with their employees about their policies regarding the use to which IT equipment should be put. Employers should provide employees with regular training and supervision regarding their IT policies (and keep documents and records of such training and supervision). An employer's internal operating procedures policies and manual do not (of themselves) entitle it to ignore privacy and personal data issues. The law of confidence and reasonable expectation of privacy is an evolving and difficult area of the law; good independent legal advice is required. The law of personal data privacy is also complex and requires good independent legal advice. The fact that a document is regarded by its owner as confidential does not (of itself) mean that it can be withheld from production in subsequent litigation between an employer and employee. Confidential documents relevant to that litigation have to be preserved by whichever party has possession, custody or power over them. As soon as there is a real likelihood of a dispute arising, legal advice should be taken. If an employee has concerns about the security and privacy of their personal communications at the workplace then he or she should avoid using the IT system at work for personal use. This is particularly true of senior personnel. This may be highly inconvenient but prevention is...