Many employers are under the impression that they can access, copy and use any information stored on computers provided to employees in the workplace. One might especially believe that to be the case where there was suspicion of possession of child pornography on a teacher’s work laptop. The Ontario Court of Appeal recently held in a criminal case that an employee’s privacy rights under s. 8 of the Charter were breached when the police used a copy of the temporary internet files on the employee’s laptop provided by the employer.
The decision in R. v. Cole, 2011 ONCA 218 provides new guidance to employers about what is within the reasonable expectation of privacy of an employee. This decision has been widely written about (see “Computer Ruling seen as landmark workplace decision”, Globe & Mail, March 25, 2011).
The Court of Appeal drew a distinction between the initial search by a school technician and the resulting disc which had copies of specific nude photographs and the complete search of the teacher’s computer and the resulting disc containing all temporary Internet files, the laptop computer itself and the mirror copy of the laptop computer. It was only the later broader search including all temporary Internet files that were found to infringe the teacher’s privacy.
While this decision is more directly about police conducting warrant-less searches, the finding that the search was overly broad in scope and therefore a violation of the teacher’s privacy rights is directly applicable to employment law. There is now an appellate court decision stating that this employee had a reasonable expectation of privacy in a workplace computer. The court found that the laptop was also used for personal use and thus the court drew a parallel with the prior decision of the Supreme Court of Canada in R. v. Morelli, 2010 SCC 8, where the court held.
These line of cases make it very clear that employers should have policies about the ability to monitor use and restrict personal use of computers at work. Even where it is a workplace device, based on this decision an employee may very well have a reasonable expectation of privacy.