The latest opinion survey, conducted by the Social Sciences Research Centre of the Hong Kong University, revealed that 63.6 per cent of the 228 respondent companies had installed at least one of five employee-monitoring devices (closed circuit TV, computer use, email, web-browsing and phone). Of these respondents, however, only 22.1 per cent had a written policy on their monitoring activities, and the rest had neither a relevant policy framework in place nor awareness of the need of such a policy.

These findings indicate that some companies have not paid much attention to the issue of workplace privacy in Hong Kong, often leading to an excessive level of monitoring and lack of openness to those being monitored.

"It is clear there is a need to heighten awareness about privacy protection and rights among employers and employees," says Tony Lam, Deputy Privacy Commissioner for Personal Data, adding that the recently released draft Code by the Office of the Privacy Commissioner for Personal Data (PCO) is intentionally designed to fulfil that need.

Introduced in December 1996 to provide control over the purpose, collection and use of personal data, the Personal Data (Privacy) Ordinance (PD(P)O), Mr. Lam explains, has been riddled with legal requirements that are deemed "too generic" to cope with the diversity of workplace activities. "To address this problem, the draft Code aims to amplify those requirements by way of pinpointing specific circumstances under which employee monitoring may be condoned, provided that the purposes being served are legitimate," he says.

Other developed countries, the UK and Australia in particular, already have provisions governing their employee monitoring practices. Mr. Lam contends that despite some of the potential differences between Hong Kong and these countries, many of their privacy laws share striking similarities in their underlying principles, some of which are directly borrowed from the International Labour Organisation (ILO). "For instance, the ILO holds the view that employees should be treated by their employers with dignity and respect, and that they should work in an environment where their privacy rights are protected," he says.

Respect and dignity aside, two other major principles are crucial for laying down the parameters of the draft Code on employee monitoring practices: Proportionality and Transparency.

Proportionality means that, as the word implies, the severity of monitoring, along with the benefits gained, should be "in proportion to" the risks involved in cases such as financial loss, damage to reputation and goodwill, disclosure of trade secrets, lost productivity and exposure to lawsuits due to employees' wrongdoings. In short, the draft Code states: "The level of monitoring should be no greater than is reasonably required to contain or guard against such risks".

Transparency, on the other hand, requires employers to assume responsibility for drafting a written policy on any monitoring practices involving personal data, and communicating that policy to their employees. This involves specifying "the purposes served by employee monitoring, the data to be collected, and the circumstances under which collection may take place," the draft Code says.

Mr. Lam says: "What we [the PCO] want to stress [in the draft Code] is clarity and simplicity, which, we believe, will help both the employer and employee to strike a balance between the needs of monitoring and the rights of privacy protection."

"The two principles are fundamental to the spirit of the PD(P)O, including its latest provisions contained in the draft Code," he adds.

"However, having said that, it should be borne in mind that there will be room for judgement when applying these principles to reality. Where circumstances may be subject to exceptions, care must be taken to consider the intensity of monitoring required... The PCO does not, in any case, attempt to legalise any monitoring activities, and vice versa, but rather to provide practical guidance on how exceptional cases may be handled. That's why the PCO is currently inviting views on such cases..."

Next issue, Mr. Lam will discuss further some of the exceptional cases in detail relating to employee monitoring.