The Supreme Court of Canada, in a just-released decision (R. v. Cole), has indicated that an employee has a reasonable expectation of privacy with respect to personal information stored on employer’s computer where personal use is permitted or reasonably expected.
The court concluded that the expectation of privacy is a matter of "reasonable expectations" and whether an expectation is reasonable depends on the ‘totality of the circumstances”.
The bottom line for employers who wish to have the right to access employees’ personal information on their work computers should either prohibit the use of work computers for personal purposes, including e-mail, correspondence files etc., or make it abundantly clear to all employees by way of a written policy that anything stored on company computers (personal or not) is subject to review and inspection by the employer. Even with these precautions it should be noted that the court concluded that policies would not be completely determinative of employees’ reasonable expectation of privacy.
The case dealt with pornography stored by a schoolteacher on personal as well as work computers. The consideration of the rights of the employee are therefore in the context of criminal consequences. However, the case does indicate a judicial reluctance to equate ownership of a computer to the untrammeled right to access any information stored on it.
Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at [email protected].
