By Robert Smithson

Last week, this column addressed the reasons of the Supreme Court of Canada relating to employees’ use of their employer’s computers for non-work purposes. Employers may have been left scratching their heads by the Court’s thoughts on this topic.

The Court, in a situation involving a teacher who was charged criminally with possession of child pornography and unauthorized use of a computer, seemed to determine that employees have some rights of privacy over personal data they store on workplace computers. Among other things, the court stated, “While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely…”

I say that the Court “seemed” to recognize a right of privacy because those reasons were given in the criminal context, to which Canada’s Charter of Rights and Freedoms applies. But the Charter does not apply when there is no governmental actor involved, so the great majority of employer-employee relationships are beyond its reach. Time will tell whether the Court’s comments will be extended to private as well as public employment relationships.

Critically, the Court made the following statements. “[O]perational realities may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information. Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy.” “Whatever the [employer’s] policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.”

This is, surely, what will have employers scratching their heads. It seems that creating a working environment in which the employer can be assured that employees who misuse workplace computers can be dealt with appropriately may be a difficult thing to achieve.

In my own experience, most employers aren’t totally freaked out by the fact that employees make some casual personal use of workplace computers. It’s just a fact of modern life that people are going to send and receive personal emails on their computer, download a recipe or some song lyrics from the internet, horde links to entertaining videos, etc.

I really don’t get the sense that employers are overly worried about this kind of activity. I certainly don’t receive many calls from managers who are upset because a staffer has accumulated a cache of brownie recipes.

What employers are upset about is when casual, harmless personal use of computers crosses the line. The high school teacher who uses his laptop to access and save lewd photos of a female student is definitely an issue.

What employers don’t want to have to do is waste a whole lot of valuable resources on continuous surveillance of what their employees are doing on their workplace computers. Employers tend to be in business for a reason, and relentless monitoring of workplace computer contents tends not to be that reason.

What employers want to be able to do, when the circumstances call for it, is search an employee’s computer to locate objectionable material. When that search turns something up, employers want to be entitled to rely on those materials as proof of wrongdoing. They don’t want to have to dilly-dally around with bickering about whether the offending employee’s privacy has been violated.

And, in my own view, they shouldn’t have to. Because the practical truth of the matter is that an employee downloading inappropriate materials onto his or her workplace computer is knowingly engaging in misconduct and is assuming the risk of being caught.

This, to me, is the rule the Court should have arrived at: Every person who is intelligent enough to operate a computer can be deemed to be intelligent enough to know the risk he or she takes by using that device for inappropriate purposes and, as such, employees who make inappropriate uses of their employer’s computer equipment have no entitlement to an expectation of privacy.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit http://www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.

This article was originally posted on You Work Here.