Question 131: Upon detecting Employees using social networks to conduct inappropriate behaviours in accordance with enterprise regulations, how can Employers affirm that Employees do so? May Employers investigate the case by themselves or must they have recourse to the police in accordance with the law? If Employers may investigate by themselves, to what extent may the investigation be conducted under the law?

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In principle, the means of employment provided by any Employer, such as electronic equipment and computers, to Employees will be considered corporate assets. Therefore, if the Employer suspects that Employees are using social network to perform acts that are inconsistent with the ILRs, the Employer himself may verify whether Employees violate through the inspection of log in/off the electronic equipment and computers used by Employees. However, from practical experience, it is not easy to verify whether a particular account belongs to a particular Employee because many Employees may bring home these devices to work due to job nature. In some cases, this may result in the fact that their relatives log on to these devices for using social network or other persons impersonate Employees and for most cases, Employers cannot have a solid basis to determine if this is the Employee’s social networking account.

It should also be noted that if the tools and means of employment for Employees, such as mobile phones and laptops, are not provided by the Employer but by Employees themselves, the Employer will not have the right to access and inspect any Employee’s own equipment without his prior consent as that may be regarded as an infringement upon the Employee’s privacy governed by the Constitution and the Civil Code. This means that, when the Employer takes self-verifying measures to prove the offending conduct by any Employee, the Employer should be aware that Employees’ benefits are legally protected, such as inviolable privacy of citizens.

In addition to his aforesaid self-verifying measures, if the Employer has reasonable grounds to believe that the Employee’s use of social network is an indication of offense in relation to the criminal law, the Employer may request assistance from a competent police department on the basis of a crime accusation or report to assist the police in investigating the case with their professional business in accordance with the criminal law.