We all know that the lines between personal and workplace have been blurred by social media, and the issue of ownership of one's social accounts is a hot topic in the legal community.
These topics are particularly relevant in the tech world, where startup employees eat, sleep breathe and tweet their work, sometimes to the employers' detriment.
As these lines continue to be crossed, as could have been expected, it seems that neither the legislator nor the courts are championing the cause of employers, and are most interested in protecting the rights of the individual employees. The result is that employers are often extremely limited in their ability to monitor and police employee malfeasance, and their interests are often cast aside in favour of protection of employee's rights, and have little or no recourse available to them.
The recent Supreme Court of Canada decision of R. v. Cole, 2012 SCC 53 (October 19, 2012) may have significantly changed the landscape regarding employees' expectations of privacy when using work-issued computers. In this decision, the Supreme Court held that employees may reasonably expect privacy in the information stored on their work-issued computers, at least where personal use is permitted or reasonably expected.
While Cole was a criminal case, its implications can be far-reaching in addressing the question of employees' expectations of privacy in using their workplace devices. Cole, a high school teacher, was accused of having illegal content on his work laptop.
The school board's policy permitted staff to make personal use of their work-issued computers, but also warned teachers that they should not have any expectation of privacy regarding files generated by personal use, and reminded them of this annually. While performing systems maintenance, a school board technician discovered nude photographs of a student on Cole’s computer, and the school board subsequently seized the laptop and gave it to the police, who searched its contents without a warrant, and charged Cole with possession of child pornography and unauthorized use of a computer.
Both at trial and at the Ontario Court of Appeal, it was held that the police unlawfully interfered with Cole's expectation of privacy and breached his Charter rights, and consequently the evidence from his laptop was excluded. While the Supreme Court allowed the appeal, holding that admission of the evidence would not bring the administration of justice into disrepute, the Court agreed that the teacher’s right to be secure against unreasonable search and seizure had been violated, and ordered a new trial.
The clear message sent by the Supreme Court to employers regarding employees' expectations of privacy on work electronic devices is that notwithstanding their workplace policies, an employee could have a reasonable expectation of privacy in the informational content on a work-issued electronic device, independent of the employer’s ownership of such device.
Cole shows us that an employer cannot unilaterally set policies negating its employees’ privacy interests in work-issued devices, as while these sorts of policies may be taken into account as a relevant factor, they are by no means considered conclusive. Even if an employer is legally authorized to seize its property, there is a fine line between such seizure and the ability of the police or any other government authority to search such device absent the employee's consent.
In light of the new order in this regard, and in order to protect its interest, a cautious employer should adhere to the following.
- Remain conscious of the fact that allowing personal use of work electronic devices may afford employees an expectation of privacy and consider the risks specific to the position and workplace.
- Ensure that its policies are clearly stated and communicated to its employees, and enforced by it.
- Never turn a blind eye to breaches of its policy in this regard.