The Pendulum of Workplace Privacy

The privacy pendulum in Canada continues to swing – this time toward increased privacy rights in the workplace. For the last several years, employees have been advised that they had no expectation of privacy for personal information created and stored on digital devices owned by their employer. Apparently, the Supreme Court of Canada disagrees with this principle and recently confirmed in a landmark decision that employees have a reasonable expectation of privacy in some circumstances.

In the R. v. Cole decision released Friday, October 19th, Canada’s highest court considered the privacy rights of an employee teacher who stored child pornography on his work computer. In its decision, the Court confirmed that employees do have limited rights to privacy for personal information on workplace digital assets, as long as personal use is “permitted or reasonably expected.” However, based on these particular facts, the Court held that the expectation of privacy was overridden by the importance of the evidence to the case.

In general, the Court noted that computers (at home or in the workplace) contain information that is “meaningful, intimate, and touching on the user’s biographical core”. As such, “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.”

​This decision will impact on the collection practices of organizations engaged in the discovery phase for litigation, regulatory investigation or audit. The right of an employer to simply collect all information on workplace digital devices, once believed to be unfettered, will have to be examined in light of this decision. Further, it is likely we will see an increase in workplace policies prohibiting the personal use of workplace assets.