Appropriate Use of Email and the Internet in the Workplace
Article by Bill Hastings, former Chief Censor
18.07.2006
Over the past decade, the Classification Office has assisted in the resolution of disputes over whether email and internet use by employees was appropriate in various public and private sector workplaces. It is timely to remind employees and employers how the Films, Videos and Publications Classification Act 1993 interacts with workplace policies on email and internet use.
Every workplace where staff have access to email and the internet should have a policy on appropriate email and internet use. The wording of each policy will be the result of a negotiated agreement between employer and employees. These policies generally allow for limited and reasonable personal use. The precise wording will differ from policy to policy.
Workplace policies will sometimes use words such as “inappropriate”, “unacceptable”, “obscene”, “indecent” or “pornographic” when defining the sort of material that should not be accessed from or received at workplace computers. None of these words has any meaning within the Classification Act. If a policy uses words such as these, an employer or employee may generally determine whether or not the policy has been breached without reference to the Classification Office. Such words do not prevent submission of the material to the Office, but it will not be necessary to do so if the workplace policy makes no reference to the Classification Act.
If, on the other hand, a workplace policy uses the words “objectionable”, “restricted”, or “within the terms of the Films, Videos, and Publications Classification Act” to define the sort of material that should not be on workplace computers, then the material may be referred to the Classification Office. The Classification Act gives the words “objectionable” and “restricted” particular legal meanings and gives the Office the power to determine whether or not material is in fact objectionable or should be classified as restricted. A decision of the Classification Office in these situations will generally determine whether a workplace policy has been breached. The policy itself will set out the consequences of such a breach. If the employer or the employee is dissatisfied with the Office’s decision, both have the right to seek a review by the Film and Literature Board of Review under s47(2)(a) and (d).
Section 29(1) of the Act gives the Office exclusive jurisdiction in civil and criminal proceedings to determine whether or not any publication (which includes emails and computer image files) is objectionable or restricted. Civil proceedings include personal grievance, wrongful dismissal and other disciplinary proceedings before the Employment Relations Authority and the Employment Court. Disputes over whether or not a workplace policy on internet and email use was breached, that also involve a determination of whether or not material was objectionable or restricted within the meaning of the Classification Act, will be referred to the Office by the Employment Relations Authority or Employment Court if the employer or employee has not already referred the material to the Office.
Finally, the offence provisions of the Classification Act apply to everyone regardless of the wording of workplace email and internet use policies. It is an offence to make, possess, supply, distribute, display, or exhibit objectionable material. Material does not have to be classified objectionable for it to be objectionable in these offence provisions. It is also an offence to supply, distribute, exhibit, display or deliver restricted material to someone under the age of the restriction. Unlike objectionable material, material must be classified by the Office as restricted for it to be restricted within the terms of these offence provisions. In both situations, it will be the Department of Internal Affairs, the Police or Customs that will prosecute these offences. The wording of a workplace email and internet use policy is irrelevant to the prosecution of these offences. The wording of the policy will, however, continue to be relevant to any disciplinary procedures invoked by the employer against the employee.
Workplace policies on email and internet use exist for several reasons. Excessive personal use of workplace computers can reduce the efficiency of the workplace, and in severe cases reduces the quantity and quality of the employee’s time for which the employer has paid. The display, even momentarily, of restricted or objectionable material on workplace monitors increases the possibility that staff will be inadvertently exposed to material they may find offensive, misogynistic, disturbing or even threatening. Such material on workplace computers can also form the basis of sexual and racial harassment claims. Policies on internet and email use represent an agreement between employer and employees on how they view their workplace environment. Workplaces are safer, healthier and more inclusive places when they are free of restricted and objectionable material.