On Tuesday, the Ontario Court of Appeal handed down its decision in R. v. Cole and in so doing, offered some much-needed clarity on the issue of employee privacy rights in the workplace.
The Cole case dealt with a high school teacher who was found (by a school board IT technician) to have sexually explicit pictures of a high school student on his work-issued laptop. The technician made screenshots of the pictures and notified the school principal, who in turn, notified the police. The principal retrieved the laptop from the teacher and handed it over to the police. On the understanding that they were dealing with school property and therefore believing that they did not require a search warrant, the police then searched the laptop for evidence of child pornography. Finding evidence, the police charged Cole.
In a unanimous ruling, the three judge panel held that despite the fact that the laptop was owned by the school, the teacher had some expectation of privacy in the data that was stored on it. The Court held that the expectation was limited though, and that the teacher could not reasonably expect that the data would be held private from the IT technician whose job was to scan his computer for viruses and install updates to software. Given the nuanced expectation of privacy, the Court held that the evidence initially obtained by the technician did not infringe the teacher’s expectation of privacy, but the information obtained by the police’s subsequent warrantless search, did.
In coming to the decision, the Court took notice of the computer use policy in place between the school and the teacher. That policy allowed for liberal personal use of the laptop, including taking it home over the weekends and during summer breaks. Additionally, the teacher had administrative rights over the school network and additional access to the internet, which other teachers did not, owing to his position on the school’s technology committee. These factors weighed heavily in the Court’s finding of a reasonable expectation of privacy.
This decision supports the employment law advice that we have been offering for many years – specifically that the expectation of privacy will play a key role in the determination of privacy rights in the workplace. The mere ownership of property such as computers, networks and telephones, does not in and of itself guarantee that information stored on that property belongs to employers. Clear, well-communicated and fair policies are key to setting expectations. We have long advocated (and provided) policies and procedures that reflect the reality of the work environment and provide for employee consent and confirmation. Clarity is key – it is important that both the employer and employee know what is acceptable use and where privacy rights lie – before data starts to accumulate. The Court of Appeal decision confirms that and makes it that much easier for us to advise employers on exactly where they stand.
Scott R. Young