The Increasing Problem of Workplace Phone Searches: A Violation of Privacy and Personal Information in China
On April 6, 2023, The Paper News reported on the issue of employers searching employees’ mobile phones, which infringes on privacy rights and personal information. In one case, a medical technology company in Wuhan demanded to inspect employees’ phones under the pretext of “finding an insider,” as someone had allegedly leaked the company’s organisational structure and personnel information. Despite initial compliance, the employees were shocked when the company asked to search their phones again the following day. One employee refused, and was subsequently accused of being the “insider,” fired without compensation, and forcibly searched upon leaving the office.
Such incidents are not rare. The Beijing №2 Intermediate People’s Court recently disclosed a labour dispute involving violating an employee’s personal information. According to law, the employee had signed two consecutive fixed-term contracts with an environmental protection company and was eligible for an open-ended contract. However, the employer restored deleted data from the employee’s computer, finding so-called “disciplinary evidence” of fraudulent leave.
The Beijing court made a clear statement in its ruling, stating that the company’s unauthorised restoration of deleted data constituted an improper use of personal information and violated the core principles of personal information protection. As a result, the evidence was deemed inadmissible.
It is evident that “phone searches” by employers exceed their average management authority and blatantly violate workers’ rights to personal information, privacy, dignity, and even third parties’ privacy. Mobile phones are not just electronic devices but individual terminals for private information. They differ significantly from company-issued devices, such as video recorders and time clock machines. Personal phones may contain intimate photos, personal grievances, and private matters that should not be disclosed to others. The unauthorised access, disclosure, or dissemination of such content is no different from an unlawful “search.”
However, the reality is that many employers continue to perform “phone searches” without facing the consequences. In some cases, the information obtained from these searches is even used as “evidence” against employees. While the court’s ruling deemed the evidence inadmissible, the employer’s illegal actions have yet to be sanctioned.
Legal experts often cite the provisions of the Civil Code and the Personal Information Security Law in such cases, emphasising the protection of privacy rights and the requirement of obtaining personal consent before processing personal information. However, the constitutional rights to communication freedom and secrecy are often overlooked.
The Chinese Constitution protects citizens’ communication freedom and secrecy. It stipulates that, except for reasons of national security or criminal investigation, no organisation or individual may violate citizens’ communication freedom and secrecy for any reason. This protection extends to modern communication methods, such as instant messaging tools on mobile phones.
In the past, protecting citizens’ communication secrecy was a widely recognised social consensus backed by criminal law. However, with the advent of mobile communication, the physical envelope safeguarding privacy has disappeared, leading to a more brazen attitude towards violating communication secrecy and a diminished sense of guilt.
As communication methods evolve and digitise, legal protection must keep pace, particularly at the constitutional level. Mobile chat is the upgraded digital version of traditional letters and is linked to constitutional rights of communication freedom and secrecy, not merely an infringement of privacy or personal information.
The issue of employers searching mobile phones and monitoring employees’ actions through surveillance programs is becoming increasingly prominent, amounting to “search” and naked manipulation. Human resources departments need to take a firm stance against such practices and for labour arbitration and judicial authorities to reject any evidence obtained through these illegal methods.
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