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Date:
2011.04.19

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THE EMPLOYERS' EDGE

Electronic Resources, Communications and an Employee’s Expectation of Privacy: What is Reasonable and How Much Can the Employer Control?

Employers provide their employees with all manner of tools to help them be productive and succeed.  Today, that can often include providing mobile technology such as laptop computers and Blackberry devices.  The common perception of such an arrangement is that, if it is owned by the employer, then the employer can rightfully monitor or search those devices or systems at its will.  However, a new privacy paradigm suggests that there may be some right to privacy for employees who use and possess employer-owned technology.

A recent decision of the Ontario Court of Appeal has provided some clarification on what and how employees’ use of employer-owned technology can be monitored.  In R. v. Cole (2011 ONCA 218), a teacher with a school-owned laptop was discovered possessing explicit photographs of an underage student through a routine search of his laptop by a computer technician.  Once found and turned over to the principal, the School Board then provided the laptop and copies of the photos to the police, who conducted their own investigation of the laptop without obtaining a warrant.  At issue was whether the teacher’s rights under section 8 of the Charter of Rights and Freedoms had been breached: was this an unreasonable search and seizure?

The Court of Appeal found, in relation to the actions of the police, this was an unreasonable search and seizure.  While the School Board owned the computer, this did not mean that it could waive the employee’s privacy rights and provide the police access to his workplace computer.  The Court specifically identified a reasonable expectation of privacy for employees who use employer-owned computers on which they also, with the permission of the employer at least, have personal information stored.

However, the Court of Appeal also stated that the actions of the computer technician, the principal and the School Board were not in violation of Mr. Cole’s privacy rights.  In that regard, there was a specific policy regarding the right of the school to monitor and maintain the system, as well as Mr. Cole’s explicit knowledge, as a member of the school’s IT Committee, of the ability of others to access the system and his computer.  While the school’s policy specifically allowed for “some personal use” of the computers, the policy and Mr. Cole’s own knowledge modified his reasonable expectation of privacy to the extent that the school’s policy so stated.

The important message for employers to take from this decision is that in order to properly access, and control, employee-possessed technology resources, you must have a specific policy in place that spells out:

  1. What, if any, personal use of the device is allowed;
  2. What the employee can reasonably expect to remain private; and
  3. To what extent the employee can expect his or her usage of electronic resources (both the device and the system, such as email) to be monitored and/or reviewed.
  4.  

    While this view is consistent with advice we have provided clients in the past, R. v. Cole provides a definitive statement on the limitations of any inherent right to monitor as the employer, and makes clear that a properly drafted and soundly-implemented policy is an employer’s only option for ensuring the proper use of its technological resources.  Note: Leave to appeal to the Supreme Court of Canada has now been granted.

    Please Note: This blog has been prepared as an informational service for our clients and other interested parties.  It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject.  Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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