Canada: Inter-Internet Policy For Employees - OVERWRITE

Last Updated: April 24 2012
Article by Mark Johnson

"Freedom of the press is guaranteed only to those who own one", according to A.J. Liebling, longtime columnist for The New Yorker. That was then and this is now. The power of the Internet puts the power of the press into the hands of every user and has made free speech inexpensive and more plentiful. The explosive growth of the Internet has created concerns over the nature of the material that is accessible on it and the legal ramifications that may be associated with access or generation of material. We are all familiar with media reports of the Internet as a medium used by software pirates, hackers, terrorists, pornographers and other evil-doers. The very nature of the Internet makes it very difficult to censor these people at the source.

The business owner or manager will obviously have concerns over the access to any such material by employees, or even worse, the creation and dissemination of such material by the employee using company resources. The Internet allows for transmission of confidential corporate information to the wrong recipient in a quick and easy manner.

It can also allow for the use of corporate resources and company time for personal gain if an employee starts to run a successful business with web links.

Employers should recognise that they may carry liability for messages or material created and disseminated by the company through the Internet. Defamation, sexual harassment, copyright infringement, discriminatory trade practices, false advertising or distribution of hate propaganda are all potential actions by employees that may carry legal or financial consequences for the employer.

The cautious employer will therefore ensure that a corporate Internet policy is drafted, reviewed and communicated to all employees in an explicit written form. Such a policy must not only take into consideration the needs and rights of the employer, but also the needs and rights of the employee. Canadian law on the topic is unclear at this time, although there is the possibility that the interception and reading of an employee's email may constitute an offence under the Criminal Code, unless there is implicit or explicit consent on the employee's part. The downloading of a web site by an employee is a slightly different matter and may not be treated by the courts in the same manner, because it is not considered to be a private communication by the employee. The common practise of employers logging employees' web site hits would currently appear to be acceptable, but nonetheless any corporate policy should address such usage.

An acceptable corporate policy should therefore not be overly draconian, at the risk of being possibly illegal or detrimental to corporate morale, but should be clear, explicit and preferably acknowledged in writing by each individual employee. The employer should point out in any policy that the company owns the Internet access system, email system and the hardware and that use of the systems should only be for legitimate business purposes. The policy should also state explicitly that the employer reserves the right to monitor all employees' use of the system, either by interception and review of email or by the maintenance of a transmission log recording where and when an employee may have been "surfing" the Internet. Again, to avoid characterisation as "Big Brother", the policy could allow for personal use by the employee, but preferably on the employee's own time, given the demands on the system that can result from downloading material, or the time used by the employee browsing the World Wide Web.

The policy should also discuss the protocol the company prefers in email communication. An email has the immediacy, and therefore the informality of a phone call. However, it has other characteristics more similar to a letter - the appearance and more importantly the permanence if printed. A standard should be established to ensure that a certain formality is maintained, that careful proof-reading is done before the "send" button is hit (nothing says "unprofessional" like a letter full of typos - the same applies to email communications) and that appropriate language is used.

The employee should acknowledge that the use of the company's resources to download or communicate any material that is: pornographic, sexually explicit, hatemongering, advocating illegal acts, in violation of the intellectual property rights of a third party, defamatory or what could possibly be interpreted as sexual harassment are all strictly prohibited. The policy should clearly state what penalties would result following a violation of the policy. The downloading of programs or software from the Internet may be an infringement of copyright, or they may contain a virus. Depending on the nature of the employer's business and the need for downloading such material, the policy could set out either a complete prohibition of such usage or allow usage only by authorised personnel under strict conditions.

In summary, the policy and the employee's acknowledgment should clearly state who owns the equipment, what uses are permitted, what constitutes a violation of the policy and what penalties may result due to a violation. This should then be signed by the employee in return for a form of consideration - being hired for employment being the most obvious. For existing employees, allowing access to the system may be consideration enough. Changes to the policy should be communicated to all employees on an ongoing basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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