Written on behalf of Peter McSherry
The issue of workplace privacy rights is heating up.
The Usual Contract Term
Many companies require its employees to sign an agreement by which management is given the right to inspect from time to time as it desires all records made by its staff members on its computers and laptops. This often applies even if the employee takes the laptop home. It also purports to apply to the entire contents of the computer.
Often employees use the company’s hardware to store personal photographs, banking records, personal emails, notes and similar records of a purely personal nature.
Supreme Court Cases
Based on two recent Supreme Court of Canada decisions, employers should not presume for one second that they have the right to access purely personal computer recorded records, no matter what the employment contract may state.
Both these cases were criminal cases but each one clearly stated that there is a concept of “the reasonable expectation of privacy” that must be recognized.
In one case, the employer agreed that its employee, a teacher, could have personal use of its laptop but also maintained a policy which stated personal email remained private, and added that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”. Also the school’s “Acceptable Use Policy” which applied to students and teachers warned the users not to expect privacy in their files.
Reasonable Expectation of Privacy
The Supreme Court stated that in circumstances where personal use of workplace computers is permitted or reasonably expected, the individual has a reasonable expectation of privacy in the personal information which is stored on the machine. Such policies may diminish, but do not eradicate, a user’s expectation of privacy.
The second case, just released this month, involved a teacher facing the criminal charge of voyeurism. The court noted that our society places a high value on privacy rights.
This case is instructive of the five mile up view of the interpretation of privacy rights which is a very friendly view of individual privacy rights.
An employee will very likely have the right to assert that the employer has no right to access clearly personal records, web browsing activities even if on employer hardware and software. It remains for future cases to deal with these issues and more, such as posting to social media and email communications. More complicated matters will include questions such as the storing and viewing of pornography on the company’s hardware such as a laptop. It should not be presumed that the employer may successfully prohibit all such usages. These issues remain undecided at present, but the momentum nonetheless appears evident.
Employees’ Take Away
The written word may well not be the last word on the definition of one’s privacy rights. When these rights are infringed, there may be a civil remedy available or the arguments of discipline based on such evidence may fail.
Get Advice and Know Your Rights
This case is a further guiding light on such awards, particularly when coming from the Court of Appeal. Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
 That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose