Workplace Privacy – What is Protected?

Employee Computer

When we log into our work computers, save a file, or check our personal email, we don’t often stop to think who that information could be shared with, or how it could be obtained. Any workplace privacy policy which attempts to limit employees from using their computers for some sort of personal use, be it something as simple as checking their bank balance, is only going to be realistically effective if it entirely locks employees out of almost every computer function. This is impractical for 99% of workforces.

While a majority of workers realize that some things are not confidential, and in fact out of necessity need to be available to other employees and management (for instance, a legal file sent by email to a client), the question “how much privacy can I expect?” is still on the minds of many workers as they use their computer provided by their employer.

Case: R v. Cole, 2012 SCC 53 [2012] 3 S.C.R. 34

However, that question apparently wasn’t on the mind of Richard Cole, a high school teacher who received a work-issued laptop and saved child pornography on it. Cole, who was permitted to use the laptop for occasional personal use, had saved a hidden folder on it which contained photos of an underage female student. The photos were not discovered until a school technician performed maintenance on the laptop.

When the police obtained the material and charged Cole, he went before a trial judge who ruled that the material was to be excluded on the basis that its collection and use for conviction constituted an unreasonable search and seizure- a violation of s.8 of the Charter. On appeal, the Summary Conviction Appeal Court ruled differently, finding no breach of Cole’s s.8 Charter rights. When the case was further appealed to the Ontario Court of Appeal, they ruled that the evidence was only partially to be excluded, and ordered a new trial.

Finally, the case arrived at the Supreme Court of Canada where the judges considered the information stored on a computer- finding it “core biographical”- a concept first explored in the 2004 Supreme Court case of R v. Tessling, and although they recognized a diminished expectation of privacy, they ultimately found that the police’s actions in obtaining that information without a warrant to constituted unreasonable search and seizure, and therefore a violation of Cole’s s.8 Charter rights. Part of this reasoning was based on that clearly Cole had stored other personal information, such as explicit pictures of his wife along with that of students, on his work computer. In the end, the Supreme Court ruled that the evidence was to be excluded.

Because Cole treated, and was allowed to treat, the computer as a private place to store private information it became a protected place under the law, enough to at least protect him from criminal sanctions and require that a warrant has been issued.

Principles of Privacy

Cases such as Cole– involving the infringement of privacy in criminal cases- are not the norm. However, there are valuable principles which can be obtained from this case and others like it, namely:

  1. The expectation of privacy in the workplace is diminished from that of the home but is not completely eliminated.
  2. The viewing of a work computer by management is permissible. And in Cole, it would have been allowed also. The problem that the Supreme Court had with the evidence’s collection was that it occurred without a warrant. Had the Principal of Richard Cole’s school seen the illegal material and reported it to the police, as is his duty in order to maintain a safe environment, a warrant would have been obtained and the evidence’s collection and use would not have been a violation of Cole’s s.8 Charter rights.
  3. There is a separation between personal and workplace privacy- the use of a work computer, in a personal capacity, has a corresponding higher privacy expectation than the use of a work computer in an occupational capacity.

Ongoing Advice

Many companies provide their employees with technology- be it a company phone, laptop or tablet, which the employee is allowed to use for personal as well as occupational use.

As an employer, it is important to have a strong workplace use of technology policy. It is important to have this drafted and implemented by an employment lawyer.

As noted, the privacy expectations while using such devices in a personal capacity are higher than that in a work capacity, and the privacy of the individual using them in that capacity should be upheld.

For employees, if you believe or know that your employer has been obtaining your private information from such a device without your permission, it is a wise decision to contact an employment lawyer and save all records and or/ proof of the intrusion whenever possible.

An Employment Lawyer may be able to assist you in obtaining a legal remedy for such infringements of privacy. Contact Monkhouse Law today for a free consultation.

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