Risks in preventing crime by limiting employees' privacy: analysing employers' duties and faculties versus privacy interests in controlling e-mails at the workplace
by Jose R. Agustina
International Journal of Private Law (IJPL), Vol. 3, No. 4, 2010

Abstract: In the framework of the imposition of criminal/civil liability within business and organisational settings, certain duties of employer surveillance and control should be identified to avoid the attribution of liability for crimes committed by others within the organisation. Some limits also arise from the employer's duty to respect an employee's privacy. As a result, the implementation of prevention and reaction strategies should be put into practice respecting certain principles that balance such conflicting interests; no strategy can be applied without certain boundaries. For a comprehensive analysis, an interdisciplinary focus on the nature of crimes perpetrated within organisational settings and the ways of implementing control is used, in order to provide a fertile ground for our purposes. This analysis is aimed at informing decision-making issues regarding prevention policies or strategies, especially over e-mails. An analysis of the justifications employers might invoke in their favour in certain limited cases cannot be completed without assessing the particularities of the company's environment, the hidden character of the criminal or deviant act, some important liability risk considerations and the way in which the threat embodied by the employee's crime leaves employers without the necessary/adequate means to defend themselves against this risk.

Online publication date: Thu, 30-Sep-2010

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