An employer can restrict the employee’s use of Internet and/or social media in the workplace during working hours. This is because employees are obliged to devote themselves fully to their duties at the workplace, during working hours.
Work email accounts and computer systems in the workplace belong to the employer and may therefore be monitored, accessed and reviewed by the employer under Japanese law. However, such access, if permitted, is possible only so far as the following conditions are met before such access is sought: (i) the employer expressly discloses the purpose of monitoring to the employees in question in advance; (ii) the employer provides the employees in question with the relevant and applicable company rules; (iii) the employer identifies the person responsible for implementing the monitoring; and (iv) draws the company rules stipulating the implementation of monitoring and announces them to the employees.
The monitoring shall be subject to an audit in order to confirm that it is properly implemented as monitoring, accessing and reviewing the employees’ electronic communications would be regarded as an acquisition of the employees’ personal information.
When an employee disparages the employer or divulges confidential information via social media, the possible remedies available to the employer include a request to the employee or the website administrator, to have the content removed as expeditiously as possible; and then consider whether to take legal and/or disciplinary action(s) against the employee for such conduct. The employer needs to evaluate if any of the grounds for disciplinary action and/or legal action is met. The employer further needs to evaluate whether to bring a criminal complaint for defamation, claim damages in tort and/or for breach of contractual obligations.
