By Graeme McFarlane

Computers are everywhere.  They say that the average cell phone has more computing power than did NASA when it sent people to the moon.  Computers provide us with the conduit through which a large part of our communication now takes place.

The value of computer use in business is readily apparent.  They help streamline work processes and allow employees to easily communicate with each other – even over great distances.  They also provide an information gathering platform that is second to none.

With the explosion of computer use, issues particular to this technology have arisen.  When individuals use technology, their conduct is often tracked and stored.  Emails, tweets, Facebook postings, web browsing histories and others all provide a rich store of information that is unique to a particular individual.  This information is highly revealing about an individual’s personal life.  The care, storage and access to this type of information intersects with an individual’s privacy rights.

These issues are highly relevant to the modern workplace.  Virtually all employers provide computers to at least some of their employees.  The question of whether an employee has a right of privacy related to their computer use at is relevant to many areas in the employment relationship.

In its decision of R. v. Cole, 2012 SCC 53, the Supreme Court of Canada grappled with the level of privacy an employee could expect in relation to his historical use of an employer provided computer.  Although the case concerned a criminal conviction, the Courts’ discussion will assist employers in addressing privacy issues in the workplace.

In this case, Mr. Cole was charged with possession of child pornography under the criminal code.  The alleged material was found in a hidden file stored on a laptop computer provided to him by his employer.  During a routine maintenance operation, an IT technician discovered the file and reported his finding to Mr. Cole’s manager.  The manager then turned the computer over to the police who ultimately arrested Mr. Cole.  At trial, Mr. Cole brought a challenge to the search of the laptop alleging that without a warrant the police had violated his Charter right to be free from unreasonable search and seizure.

At the trial level, the judge agreed that Mr. Cole had a reasonable expectation of privacy related to his use of the company owned laptop.  He found that the police should have obtained a warrant before viewing the material contained in the machine.  Because they did not, he excluded the evidence found on the laptop because Mr. Cole’s section 8 Charter rights had been violated.  The Crown did not have any other evidence against Mr. Cole, so the charges were dismissed.

Two levels of provincial appeal followed, and ultimately, the Court of Appeal for Ontario confirmed the exclusion of much of the evidence seized and sent the matter back for retrial.

The Supreme Court of Canada was engaged and it first examined the nature of the information stored on the computer.  It held that the nearer the information lies to the biographical core of personal information, the more likely that an employee will be able to expect that the information will remain private.  In this case, Mr. Cole had used the laptop to browse the internet.  A review of his browsing history would reveal his interests, likes and propensities and this information went to the “biographical core” of personal information.

The Court then observed that the employer owned the equipment and had a patchwork of policies, practices and customs that reduced Mr. Cole’s expectation of privacy.  It focused particularly on the fact that the employer had reserved ownership of all information stored on its equipment.  The Court held that although the employer’s rules reduced Mr. Cole’s expectation of privacy it was not eliminated in circumstances of intrusion by the state.

It confirmed that Mr. Cole’s Charter rights were violated, but refused to exclude the evidence on the basis that the admission of this highly reliable and probative physical evidence would not bring the administrative of justice into disrepute (this is a fancy test that criminal lawyers use).

At the end of the day there are some important lessons for employers to be learned from the Cole case.  The ownership and permitted use of employer provided computer equipment will be the focus of any judicial examination related to an employer’s monitoring of employee computer conduct.

All employers should implement policies with the following components:

• ownership of the technology and data are reserved to the employer;
• a full description of permitted uses and prohibitions;
• confirmation of an employer’ right to monitor computer conduct;
• contravention of the policy may result in disciplinary action including possible termination; and
• illegal/criminal use will be reported to the appropriate authorities.

Of course all of the other rules for a valid policy would apply as well.

Decision makers are struggling to balance the interests of employees with the rights of employers in dealing with the ever changing technological landscape.  However, we can see repeatedly that the better prepared employers are with respect to its policies and communications with its employees, the more likely that there will be fewer surprises and associated costs.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk: Winter 2012)