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06. Social Media and Data Privacy in China

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06. Social Media and Data Privacy in China

Restrictions in the Workplace

Employers in China may impose restrictions on employee’s electronic communications. The restrictive requirements are usually phrased as i) the electronic communication systems including the computers, Internet systems, telephone, voice mail and email systems provided to employees by the employer, shall belong to the employer and only be used for work-related purposes; and ii) the employees shall not have a legitimate expectation of privacy protection in regard to the said electronic systems. The aforementioned restrictive requirements are often documented in the employer’s internal policies and become binding on the employees after undergoing the due procedures.

Can the employer monitor, access, review the employee’s electronic communications?

Under PRC Labour Contract Law, the employer could formulate its internal policies in accordance with law. If such policies involve the matters such as working hours, work discipline, etc., which have a direct impact on employees’ immediate rights and interests, the said policies shall be discussed by the employee representative congress or all employees, and then determined by the employer after consultation with the labour union or employee representatives (the “Democratic Procedures”).

Therefore, if the employer’s restriction on employees’ use of electronic communications is a part of its internal policies, which have undergone the said Democratic Procedures and have been announced to all employees, or informed to a specific employee, or is incorporated in the employee’s employment contract, it could be valid and enforceable.

As employees’ electronic communications may include personal information that can be identified under the PRC Civil Code, the employer shall also be aware of observing the PRC Civil Code when processing such information.

The employers may formulate the above-mentioned restrictive requirements to distinguish working information from personal information.

Notably, in the latest judicial practice, if employers restore deleted data from employees’ work devices without authorization, some courts may hold that it constitutes improper use of personal information and deny the validity of such evidence.

Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information

Similar to the restrictions on employees’ usage of electronic communications, an employer may also formulate its social media policy to require its employees to refrain from making disparaging comments about the employer. The social media policy also needs to undergo the Democratic Procedures before it can (legally) be enforced.

In a recent case decided by the Beijing No. 3 Intermediate Court, the employee circulated multiple articles on the Internet about the employer. As a result, the employer terminated the employee for breaching the non-disparagement obligation as prescribed in the employee handbook. The Court determined that the employee’s online articles were derogatory and aggressive and therefore it was legal for the employer to terminate the employment relationship, pursuant to its employee handbook.

However, the nature of the non-disparagement obligation conflicts with an employee’s freedom of speech, to a certain extent. Sometimes, it is also difficult to objectively determine whether or not the employee’s words are disparaging to the employer. Thus, employers in China are often advised to be cautious when disciplining employees for violating their non-disparagement obligation.

Regarding the confidential information, pursuant to PRC Labour Contract Law, confidentiality obligation could be agreed upon between the employer and employee in the employment contract.  If the employee has divulged confidential information to any third party, the employer could claim any damage incurred thereof against the employee. In practice, for more effective regulation purposes, employers may specify the restrictions regarding employee’s use of social media and not divulging confidential information in their internal policies (e.g. explicitly stated in the employee handbook that employees are not allowed to comment on any affairs related to the employer in a public nature or on their own social media). The employer may, in accordance with internal policies, impose disciplinary measures on the employees if they use social media to disparage the employer or divulge confidential information.

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