New Zealand: Work computers - user rights v owner rights

Last Updated: 29 March 2011
Most Read Contributor in New Zealand, September 2016

By Doug Alderslade and Marie Wisker

A recent Ontario Court of Appeal decision, which recognises that employees can have privacy rights over personal information stored on work computers, underlines the importance of having clear workplace policies regarding computer use.

This Brief Counsel summarises the case and explains its relevance for New Zealand employers.

Employers beware: information on your computers may not be yours

Although the case is from Ontario, it serves as a salutary reminder to New Zealand employers that:

  • employees may have a privacy right in personal information that they put on workplace computers (the position is the same in New Zealand), and  
  • ownership of a computer does not confer a right to access information on that computer. 

Employers should ensure that their policies on use of firm computers, and rights of inspection by the employer, are clear and well understood.  Otherwise they risk running into trouble, not only with their employees (personal grievances and actions in the Employment Relations Authority and the Employment Court), but also potentially with other authorities such as the Privacy Commissioner and the Human Rights Review Tribunal.  The Tribunal has jurisdiction to award general damages up to $200,000.

The context

The Ontario Appeal Court held unanimously that a high school teacher charged with having nude sexually explicit images of a student on his school-supplied laptop had a right to expect that his personal files would remain private. 

The teacher came across the pictures when he remotely accessed a student's e-mail account, as he was entitled to do and did regularly as part of his employment.  The teacher's laptop was then later checked by a computer technician employed by the school to maintain the integrity of the school network.

The technician reported the find to the principal who ordered that the photos, and the teacher's other temporary internet files, be copied to two discs which he turned over to the police along with the laptop.  The police later searched the material and copied the hard drive without first obtaining a warrant.  They did not think a warrant was necessary because the computer was owned by the school and they considered they had the school's consent to conduct the search.

At issue before the Court were whether the technician, the school and the police had violated the teacher's right under the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure.  Whether or not that right had been violated depended on whether or not the teacher had a privacy interest in the contents of his work laptop.

Court findings

The Court found that the teacher had a privacy right in the personal files that he stored on his work computer, except to the extent that the school's technician was accessing the computer in order to maintain the school's systems.  Accordingly, the Court found that the technician and the school were acting within the scope of their normal responsibilities and had not breached the Charter. 

"The technician was acting within the scope of his functions when he came across the student photographs and thus did not violate the appellant's modified privacy interests.  The principal and school board officials acted reasonably under the authority of the Education Act to protect students and a safe learning environment."

However it found that the police were in breach of the teacher's right to privacy in searching the laptop and the disc containing the internet files (including large numbers of pornographic images) from the teacher's browsing history.

What are the Courts looking for?

The Appeal Court assigned considerable significance to the school's practice of allowing teachers to use their work laptops for personal purposes and to take them home during weekends and holidays.  The Court found that the school's practices and policies created a "reasonable expectation of privacy in the information stored in the hard drive", modified only by the limited right of access by the school's technical staff in the performance of their system maintenance functions.

The Court came to this conclusion despite an explicit statement in the policy that all information on school computers belonged to the school. 

The Court relied on the fact that the policy omitted reference to searching the computers and did not address the issue of privacy for information stored on any of the school's computers.  The Court likened the technician's ability to access the computer to that of a master key in an apartment or hotel.  It did not displace the teacher's reasonable expectation of privacy, just as the existence of a master key did not create a right needlessly to invade a guest's privacy.

In this case, because the school technician discovered the photographs in the course of his usual duties, the Court found that the teacher could not assert a right to privacy against the technician or the school.  However, that discovery and the provision of the laptop to the police by the school did not displace the teacher's reasonable expectation of privacy in the contents of that laptop as against the police.    

Nor was the school able to consent to the police search of the computer based on its ownership of the computer.  The Court contrasted the case with a leading US judgment where the Court of Appeals for the Ninth Circuit upheld a company's right to allow the police to search the work computer of an employee who had been accessing child pornography sites. 

Factors which were significant to the US Court's approach were that:

  • the IT department had complete administrative access to all employees' computers
  • the company had installed a firewall to monitor the flow of internet traffic
  • employees knew that internet use was routinely monitored and reviewed on a daily basis, and
  • employees had been informed that the computers were company-owned and were not to be used for activities of a personal nature.

Implications for employers

The decision provides an important reminder of the need to have a written and clearly understood workplace policy regarding the use of work computers and the employer's ability to search e-mails and internet traffic.

Unless there is such an agreement in place, the Court may find that the employee's privacy rights trump the employer's property rights as the owner of the equipment.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.