Employees Have Right To Privacy On Work Computers

In one of my previous blog entries, “A Slam to Big Brother at Work”, I wrote about a decision of the Ontario Court of Appeal in which the Court held that employees have a right to privacy on work computers. Earlier this month, the Supreme Court of Canada upheld that proposition in R. v. Cole[1].

You may recall that the case involved a high-school teacher who was caught with nude images of an underage student on his laptop that had been issued by his employer, the school board. The school seized the computer and copied its contents. It also handed the computer over to the police who conducted a search of the computer without first obtaining a warrant. The school board had a policy in place that: (a) allowed for personal use of the computer; (b) stated that email correspondence remained private but was subject to access by school administrators in certain situations; (c) stated that all data and messages generated on or handled by board equipment were considered to be the property of the employer.

The Supreme Court considered, among other issues, whether the teacher had a reasonable expectation of privacy in his employer-issued work computer. In reaching its conclusion, the Supreme Court made the following key points:

Whether an employee has a reasonable expectation of privacy depends on the totality of the circumstances.
There is both a subjective and objective component to determining whether an employee has a reasonable expectation of privacy.
1. First a subjective determination has to be made about whether a particular employee believes that the information on his/her computer is private.
2. Next, the question is whether the subjective expectation of privacy is objectively reasonable. In reaching that conclusion, the Court stated that the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize a privacy interest.
While the ownership of computer is a relevant consideration, it is not determinative of whether the information contained on the computer is private.
Policies are not determinative of a person’s reasonable expectation of privacy.

The Court held that the employee did have a reasonable expectation of privacy. However, it overturned the Court of Appeal’s decision relating to the admissibility of the evidence gathered through the police search stating that if the evidence had been excluded, it would have a negative impact on the truth seeking function of the criminal trial process.

So, what does this mean for employers? In my previous blog post on this issue, I recommended that employers review, revise and/or implement computer usage policies that clearly set out the company’s expectations for personal use of its computers and other electronic devices. I would still make that recommendation, but would also add that such a policy, on its own, will not be sufficient to erase an employee’s expectation of privacy.

The more evidence that an employer has to show that the practice in the workplace is consistent with the terms of the policy, the more likely it is that the provisions of the policy will be upheld. In other words, given that the courts will be looking towards the totality of the evidence, it is not enough to simply have a policy in place. Employees should be made aware of the policy, should be trained on the policy and the policy should be rigorously enforced. Otherwise, it will be very difficult for an employer to avoid a finding that its employees have a right to privacy on work computers (and/or any other electronic device!).

If you have any questions or would like more information on this topic, please contact Andrea Bezaire at andrea.bezaire@siskinds.com or call 519-672-2121.

[1] 2012 SCC 53.

Posted: October 31, 2012 by Andrea Bezaire | with 0 comments | Share This Link

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Employees Have Right To Privacy On Work Computers

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