"Privacy" is a hot button topic just about everywhere you look. Employee privacy has always been an issue, whether related to surveillance cameras on the shop floor or bag searches. Of course, with the integration of new workplace technologies, workplace privacy issues have continued to evolve.
The tools of the modern workplace typically consist of a computer (often a laptop) and a smart phone, both of which have access to the employer's computer servers and networks. It would be extremely naive to suggest that employees restrict their use of these employer-supplied devices and networks to business only. The undeniable fact is that employees use these devices to send personal emails, store personal files and for personal internet access.
Accordingly, the workplace privacy question most often asked these days is to what extent an employee's personal use of employer-provided hardware and infrastructure is considered "private" and therefore deserving of protection?
In the Alberta Court of Appeal case of Poliquin v. Devon Canada Corporation, the Plaintiff, Mr. Poliquin, was dismissed for sending pornographic, racist and derogatory emails using a workplace computer. In determining whether the employer was within its rights to monitor Poliquin's personal email communications, the court engaged in an analysis of whether Poliquin had a "reasonable expectation of privacy" in those communications.
The court ultimately found that, noting the existence of several policies relating to computer usage and workplace conduct, Poliquin did not have an expectation of privacy with respect to the impugned email communications. Moreover, the court concluded that employers have a right to monitor employee use of the employer's equipment and that employees have no expectation of privacy in activities conducted on workplace computers. This has been the generally accepted knowledge up until the recent Ontario case of R. v. Cole.
Richard Cole was a high school teacher with the Rainbow District School Board. He was provided with a laptop computer for use in teaching a communication technology course and for the purpose of supervising a student laptop program. Cole also had access and administrator rights to the school's computer network. Using those access rights, Cole remotely accessed a student computer where he found explicit nude photos of a Grade 10 girl. Cole copied the explicit photos onto the hard drive of his school-issued laptop.
When a computer technician employed by the school remotely accessed Cole's hard drive to perform a virus scan the technician located a secret file on Cole's hard drive containing the nude photos. This was reported to the school principal who then instructed Cole to surrender his computer. On further investigation it was found that, in addition to possessing explicit photos of a grade 10 student, Cole had also used his school-issued computer to view a large number of pornographic images on the internet. The computer and investigation findings were handed to the police and Cole was charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.
The central issue at the criminal trial, and on appeal, was whether Cole had a reasonable expectation of privacy with respect to files stored on his school-issued laptop. The Ontario Court of Appeal found that, indeed, Cole did have a reasonable expectation of privacy with respect to the personal files on the laptop. In support of this decision, the Court of Appeal noted the following factors:
- Teachers had an express right to use laptops for personal use in addition to employment purposes and the laptops were password protected;
- There was a lack of information in the school's policies and procedures relating to the searching of workplace computers and privacy issues in general; and
- Cole's limited knowledge of the school's monitoring of his computer was not enough to displace the reasonable expectation of privacy that would otherwise exist in the personal information contained on his school-issued computer.
While Cole would appear to place some restrictions around an employer's right to monitor its employees' personal use of workplace computers, it must be noted that this case was decided in the context of the Canadian Charter of Rights and Freedoms (which was applicable to the school board) and the police's ability to access Cole's computer files without a search warrant. It is unclear whether the court would have found a reasonable expectation of privacy to exist had this been a civil case with an employer not subject to the Charter. Nevertheless, the case does provide some authority for limiting employers' rights to monitor personal computer use in the future.
Quite apart from the Cole and Poliquin cases, no privacy discussion (employee or otherwise) would be complete without mention of the recent Ontario Court of Appeal decision in Jones v. Tsige which recognizes a new tort of "intrusion on seclusion." In a nutshell, a person commits the tort of intrusion on seclusion where he or she intentionally and recklessly invades, without lawful justification, another person's private affairs or concerns and a reasonable person would have regarded such an invasion as highly offensive, causing distress, humiliation or anguish.
The warning to employers is that intruding upon an employee's reasonable expectation of privacy may now expose an employer to civil liability.
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.