April 5, 2012 at 17:58Is reading corporate email legal?
Based on the question that a small holivar arranged. Most habrozhitel agreed that the head of the organization (and anyone else) reading the corporate correspondence of their employees is illegal and violates the constitution, which guarantees us confidentiality of correspondence. Let's see how things are in fact in the legislation.
The position of an employee of the organization of the
Constitution of the Russian Federation (Article 23 of the Constitution of the Russian Federation), “Every citizen has the right to privacy of correspondence, telephone conversations, postal, telegraphic and other communications. The restriction of this right is allowed only on the basis of a court decision. ”
That is, the legislation of the Russian Federation does not give the employer the right to control the correspondence of employees. Moreover, there is Art. 138 of the Criminal Code of the Russian Federation, which reads:
“Violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages of citizens is punishable by a fine in the amount of up to 80 thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a period of 120 to 180 hours, or correctional labor for up to one year. ”
Employer Position
Corporate email belongs to the company. It should be used by an employee only for the performance of his official duties and is not intended for personal correspondence. The employer pays for the mail traffic used by employees for personal purposes and their working time spent on personal communication. He will suffer losses in case of leakage of confidential information.
From collected materials, e.g.whether it is legal to monitor employees ; the main conclusion is made that art. 10 h. 4 of the Federal Law of the Russian Federation of July 29, 2004 No. 98-ФЗ “On Commercial Secret” reads as follows: “The holder of information constituting a commercial secret has the right to use, if necessary, means and methods of technical protection of the confidentiality of this information, other, not contradicting the legislation of the Russian Federation Federations, measures. ”
Position of a lawyer
Secret of correspondence applies to persons participating in its process only when paying for these funds and services of a telecom operator independently.
Correspondence is organized for production purposes during working hours using technical means belonging to the organization. If an employee includes personal motives and goals in this process, then such actions can be considered as satisfying personal needs at the expense of the organization, which, accordingly, falls under the scope of the Criminal Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation with all the consequences for this person.
That is, all correspondence carried out during working hours with the help of technical means belonging to this organization, and through the channels of communication or data transfer paid for by it, is official, even if it is conducted after hours.
Actions of the head (lawyer)
Indicate in the Charter of the organization who owns all material, technical and intellectual (information) resources, including the contents of official correspondence, which is carried out by the organization’s employees during office hours and with the help of technical equipment belonging to the organization.
To establish a trade secret regime in the organization (in accordance with Article 10, Part 1 of the Law “On Trade Secret”). The manager must issue an order defining employees' access rights to information that is confidential.
When concluding an employment contract with an employee, it is necessary to include a clause whereby the employer reserves the right to control the employee’s activities at the workplace during office hours, including checking the contents of the office correspondence, no matter how it is conducted (on paper, by e-mail )
Conclusion
Reading corporate mail is possible and sometimes even necessary.
The position of an employee of the organization of the
Constitution of the Russian Federation (Article 23 of the Constitution of the Russian Federation), “Every citizen has the right to privacy of correspondence, telephone conversations, postal, telegraphic and other communications. The restriction of this right is allowed only on the basis of a court decision. ”
That is, the legislation of the Russian Federation does not give the employer the right to control the correspondence of employees. Moreover, there is Art. 138 of the Criminal Code of the Russian Federation, which reads:
“Violation of the secrecy of correspondence, telephone conversations, postal, telegraphic or other messages of citizens is punishable by a fine in the amount of up to 80 thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a period of 120 to 180 hours, or correctional labor for up to one year. ”
Employer Position
Corporate email belongs to the company. It should be used by an employee only for the performance of his official duties and is not intended for personal correspondence. The employer pays for the mail traffic used by employees for personal purposes and their working time spent on personal communication. He will suffer losses in case of leakage of confidential information.
From collected materials, e.g.whether it is legal to monitor employees ; the main conclusion is made that art. 10 h. 4 of the Federal Law of the Russian Federation of July 29, 2004 No. 98-ФЗ “On Commercial Secret” reads as follows: “The holder of information constituting a commercial secret has the right to use, if necessary, means and methods of technical protection of the confidentiality of this information, other, not contradicting the legislation of the Russian Federation Federations, measures. ”
Position of a lawyer
Secret of correspondence applies to persons participating in its process only when paying for these funds and services of a telecom operator independently.
Correspondence is organized for production purposes during working hours using technical means belonging to the organization. If an employee includes personal motives and goals in this process, then such actions can be considered as satisfying personal needs at the expense of the organization, which, accordingly, falls under the scope of the Criminal Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation with all the consequences for this person.
That is, all correspondence carried out during working hours with the help of technical means belonging to this organization, and through the channels of communication or data transfer paid for by it, is official, even if it is conducted after hours.
Actions of the head (lawyer)
Indicate in the Charter of the organization who owns all material, technical and intellectual (information) resources, including the contents of official correspondence, which is carried out by the organization’s employees during office hours and with the help of technical equipment belonging to the organization.
To establish a trade secret regime in the organization (in accordance with Article 10, Part 1 of the Law “On Trade Secret”). The manager must issue an order defining employees' access rights to information that is confidential.
When concluding an employment contract with an employee, it is necessary to include a clause whereby the employer reserves the right to control the employee’s activities at the workplace during office hours, including checking the contents of the office correspondence, no matter how it is conducted (on paper, by e-mail )
Conclusion
Reading corporate mail is possible and sometimes even necessary.