Balancing an employee’s privacy rights with the employer’s ability to manage the workplace is an ongoing debate and continues to become more complex as employees use social media and other platforms to share information that impacts the workplace. Employers need to continue to be mindful of individual privacy interests and still assess how far they may reach when investigating issues of workplace harassment, workplace violence, the disclosure of confidential information, or dissemination of material offensive in the workplace. A recent criminal decision from the Ontario Superior Court helps provide guidance with respect to how an employer can use Facebook profiles, posts and messages.
In R v Patterson the defendant was charged with an offence under the Criminal Code and as part of the prosecution of the case, the Crown sought to rely on messages sent via Facebook Messenger, images and texts that were shared as part of a Facebook Group, and Facebook profiles. All of this information was obtained by either the alleged victim volunteering access to his account or provided by Facebook by court order. The defence sought to exclude this evidence from the trial by arguing that it breached the accused’s section 8 Charter rights to be free from unreasonable search and seizure.
Ultimately, the court determined that the documents could be relied on as the accused did not have a reasonable expectation of privacy. The court in this matter built upon the principles set out by the Supreme Court of Canada in R v Marakah, which set out the framework for determining when there is a reasonable expectation of privacy in communications. Both of these decisions are useful to employers, and their reasons should be considered when determining if personal communications information can be relied on by an employer in the course of exercising legitimate managerial obligations.
The take away in this case for employers is that social media content likely will not have a reasonable expectation of privacy. Employers can rely on this case for support that information that is publicly available does not have a reasonable expectation of privacy. For example, if a simple Google search reveals the information under consideration, that content is unlikely to attract an expectation of privacy. On the other hand, information that requires you to be “friends” with the individual in order to access it is more likely to attract a reasonable expectation of privacy. Employers should therefore consider how the information they are relying on is obtained.
Also in this case, an interesting distinction was drawn between text messages sent via cell phone and messages shared on Facebook Messenger. The court noted that the accused had no ability to control whether the messages were distributed by other members of the group and that these messages could be accessed from any platform where you could sign into Facebook as opposed to text messages which would be limited to the specific phones used. The court relied on this analysis to determine that there was a diminished expectation of privacy in the Facebook Messenger content despite the messages not being publicly available.
Like with the previous cases in the criminal context, this example may assist employers in navigating workplace issues such as investigations into workplace harassment or off-duty conduct. As mentioned above the case was not heard within the context of an employment relationship and the principles have not yet been applied to these circumstances by any court. However, the recurring use of this approach in the criminal realm likely means that courts will take guidance from these principles even in other areas of law. Employers should consider the privacy expectations of an employee when using information obtained from a third source whether it be social media or text messages.
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.
