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.