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Examination of e-mail box etc.

The chapter is added pursuant to the Regulations of 29 January 2009 No. 84 (in force from 1 March 2009).

Section 9-1. Scope

This chapter concerns the employer's right to examine an employee's email box etc. The term employee's email box means an email box that the employer has placed at the disposal of the employee for use at work in the business. The rules apply in the same way for the employer's right to explore and examine the employee's personal space in the business' computer network and in other electronic communications media and electronic systems that the employer has placed at the disposal of the employee for use at work in the business. The provisions shall also apply to the employer's examination of information that the employee has deleted from the aforementioned spaces, but which is stored as back-up copies or similar that the employer can access.

These rules shall apply equally to present and former employees as well as other persons who perform or have performed work for the employer.

These rules shall apply equally where data processing is entrusted to a Data Processor.

These rules shall apply insofar as they are appropriate for the examination by a university or university college of the email boxes of students, and for the examination by organizations and associations of the email boxes of volunteer workers and trusted officials.

Added by the Regulations of 29 January 2009 No. 84 (in force from 1 March 2009).

Section 9-2. Criteria for examination

An employer may only explore, open or read email in an employee's email box

a) when necessary to maintain daily operations or other justified interest of the business,

b) in case of justified suspicion that the employee's use of email constitutes a serious breach of the duties that follow from the employment, or may constitute grounds for termination or dismissal.

An employer is not entitled to monitor employees' use of electronic systems, such as the Internet, beyond what follows from section 7-11 of these Regulations.

Added by the Regulations of 29 January 2009 No. 84 (in force from 1 March 2009).

Section 9-3. Procedures for examination

The employee shall be notified wherever possible and given an opportunity to speak before the employer makes the examination under this chapter. In the notice the employer shall explain why the criteria in section 9-2 are believed to be met and advise on the employee's rights under this provision. The employee shall wherever possible have the opportunity to be present during the examination, and shall have the right to the assistance of an elected delegate or other representative.

If the examination is made with no prior warning, the employee shall receive subsequent written notification of the examination as soon as it is done. This notification must, besides the information mentioned in the first paragraph, second sentence, contain details of the method of examination, the emails or other documents that were opened, and the result of the examination, cf. section 2-16.

The exemptions from the right to information in section 23 of the Personal Data Act will apply in the same way. The exemptions also cover the subsequent notification under the second paragraph.

The examination shall be conducted in such a manner that the data are left unchanged if possible so that information obtained can be verified.

If examination of an email box reveals no documentation that the employer is entitled to examine under section 9-2 letters a and b, the email box and the documents it contains must be closed forthwith. Any copies must be deleted.

Added by the Regulations of 29 January 2009 No. 84 (in force from 1 March 2009).

Section 9-4. Deletion, etc. on termination of employment

When the employment ends, the employee's email box and similar are to be discontinued and contents not necessary for day-to-day operation of the business should be deleted without undue delay. Section 28 of the Personal Data Act will apply correspondingly.

Added by the Regulations of 29 January 2009 No. 84 (in force from 1 March 2009).

Section 9-5. Prohibition of non-compliance with this chapter

The issuance of instructions or making of agreements concerning the employer's right to examine employee emails or similar that fail to comply with the provisions in this chapter to the detriment of the employee is prohibited.

Added by the Regulations of 29 January 2009 No. 84 (in force from 1 March 2009).