Last week the Supreme Court of Canada delivered a groundbreaking decision (Her Majesty the Queen v. Richard Cole) that will have significant implications for workplace privacy rights of employees in Canada. In its decision the SCC declared that employees have an expectation of privacy with regard to personal information contained on workplace computers where the personal use of such computers is permitted or reasonably expected. To learn more please click here>> to listen to my interview with Charles Adler of CJOB|68 radio in which we discuss this important decision.
Supreme Court issues groundbreaking workplace privacy decision: Interview with Charles Adler (AUDIO)October 26, 2012
The formerly classified documents are tantalizing and the story behind Assange and his WikiLeaks website is fascinating. But amidst the media chatter about the damage inflicted by WikiLeaks itself, the circumstances surrounding the initial release of secret documents from the U.S. government to WikiLeaks should provide a wake up call for other governments and corporations here at home.
A former administrator in the Rural Municipality of La Broquerie has alleged that town politicians installed hidden video surveillance cameras in nearly every room in the municipality offices to secretly spy on rival councillors, staff and even the public.
Manitoba’s Ombudsman is investigating these explosive allegations. If they are true, it is very hard to image a legal defence. But can the use of covert video surveillance ever be legal?
Most Canadian businesses these days supply their employees with devices such as laptops, cellphones and PDAs that are then often used by employees after work hours for personal use. In most cases, this isn’t a problem for either the employer or the employee. But too many businesses that issue cellphones, laptops or PDAs to their employees have not taken the necessary steps to mitigate the associated legal risks.
These legal risks can include the fact that employees can use these devices to distribute emails or text messages that defame other parties or that include illegal sexual or racial content (which in Manitoba could give rise to employee and employer liability under The Human Rights Code). Employees may also use these devices to intentionally or unintentionally leak personal or corporate information. Employees, however, may have an expectation or legal right of privacy depending on the circumstances, so wholesale monitoring by employers may not be in the cards.
In that case the court found that a police department had violated the Fourth Amendment and state constitutional rights of employees and the people they exchanged text messages with, when they reviewed “personal” text messages created on devices owned and issued by the police department. It also found that the text messaging provider, Arch Wireless, violated the Stored Communications Act (SCA), 18 U.S.C. §§2701-2711, by providing transcripts of these messages to the employer.
Although this decision is based on U.S. law, similar results could happen in Canada. As a result, Canadian businesses should ensure that their employees clearly understand what they can and cannot do with the devices issued to them. One of the best ways to accomplish this goal is to develop appropriate policies and procedures, which will minimize the chances of being taken to court by third parties or employees.
My column of June 4, 2008 in the Winnipeg Free Press describes the guidelines published by the Privacy Commissioner of Canada jointly with the privacy commissioners of British Columbia and Alberta, and how businesses can use them to remain compliant with the law.
My February 7, 2005 column in the Winnipeg Free Press concerns identity theft and workplace surveillance.