When a school technician found child pornography on a teacher’s laptop it might seem like an open and shut case, but the Supreme Court of Canada has said that under some circumstances employees have a reasonable expectation of privacy.
The court was deciding whether the evidence found on the school-owned laptop was admissible, and its decision has ramifications for any employer whose workers could use company-owned technology for personal use.
It this specific case, the Supreme Court found that while police had infringed on the teacher’s rights, the evidence could still be included in the trial. More interesting for employers was the discussion around the expectation of privacy. The Court signalled that individuals in Canada have a legitimate expectation of privacy with respect to electronic communications – regardless of who owned the communication device. However, the Court said having a policy regarding the use of workplace information technology resources may diminish an employee’s reasonable expectation of privacy.
So if you don’t have a policy in place, or if your staff are not aware of the policy, your company could face serious obstacles in examining employee’s files on work computers.
“The number one thing is to have a strong policy in place and the purpose of a policy is to minimize the expectation of privacy a person may have,” employment lawyer Russell Groves from Filion Wakely Thorup Angeletti said. “It’s about the reasonable expectation that’s held so if someone doesn’t have the expectation that material will remain private then it’s difficult to establish that their privacy has been violated. Creating a policy that is robust and also that employees are aware of will go a long way in minimizing or reducing that expectation of privacy.”
Groves said important factors to cover include:
clear warnings that information viewed, stored, transmitted or otherwise accessed on employer-owned electronic devices is the property of the employer
that the use of all employer-owned devices will be monitored periodically
what is appropriate use of an employer-owned electronic device. Minimally, the viewing, storage, or transmission of pornography, material which otherwise denigrates a specific group of people recognized by human rights legislation, material that is contrary to the employer’s code of conduct and, material that is criminal in nature should all be characterized as inappropriate