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Even Employees that Speak Poorly of Employer Are Entitled to Reasonable Expectation of Privacy

6 minute read

I came across an interesting arbitration decision, Canadian Broadcasting Corporation v Canadian Media Guild, 2021 CanLII 761 (CA LA), that dealt with an employee disclosing information that cast a negative light on his employer, which was discovered by looking through his personal social media accounts that he left open on a shared workplace computer. One might think that the employer was justified in this situation to take the steps it did to investigate and prevent reputational damage. However, even in circumstances like this, the employee is entitled to a reasonable expectation of privacy, especially when that right is protected in the employer’s privacy policies and the collective agreement.

AK worked for the CBC in a temporary position, in the Manitoba office. As a child of parents who immigrated to Canada, AK took offence to the comments made by Don Cherry about immigrants to Canada not wearing poppies. AK expressed his opinion on Cherry’s comment on his personal Twitter account, which included his CBC email address. AK was directed by CBC to remove the tweet. AK communicated the direction he received from CBC to friends at Macleans magazine and Canadaland (a website and podcast focused on the Canadian news industry). Both of these news outlets ran articles on the CBC’s response to the personal tweets.

AK communicated with his friends in the media about the CBC response to his personal tweets through private messages on Twitter and WhatsApp, using a shared CBC-owned laptop. AK had signed out the shared laptop and left it on his desk without logging out of his Twitter or WhatsApp accounts. A colleague took the laptop from AK’s desk. He saw the private messages about CBC and reported them to management.

AK was fired for cause on December 3, 2019 after acknowledging leaking the story about CBC. The cause for the termination was stated to be a violation of AK’s requirement of loyalty to his employer and placing the CBC’s reputation at risk. A grievance was commenced by the Canadian Media Guild claiming a violation of the Privacy Act, amongst other legislation, and the collective agreement. The CBC had policies in place that addressed the use of social media and the use of corporate assets. There was also reference in the CBC’s Journalistic Standards and Practices to social media use and the impact it could have on the CBC.

Screenshots had been taken of the offending messages by the CBC management and AK’s colleague. A CBC management witness verified that the screenshots were obtained by searching AK’s open Twitter and WhatsApp account on the shared laptop. The messages captured in the screenshots included those from a time before AK was a CBC employee, and those that were found through a keyword search using “tweet”. The manager testified that “privacy was not the main concern because the consensus when she consulted the HR department and her boss was that she had no choice but to confirm the material that was already sent to her, and because there should be no expectation of privacy on a shared laptop.”[1]

Arbitrator Slotnick referenced the following passage from the Supreme Court of Canada’s R v Cole seminal decision on an employee’s reasonable expectation of privacy:

[1] The Court left no doubt in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, that Canadians may reasonably expect privacy in the information contained on their own personal computers. In my view, the same applies to information on work computers, at least where personal use is permitted or reasonably expected.

[2] Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core. Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.

[3] 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: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.[2]

He applied the R v Cole “totality of circumstances” test and found that AK had a reasonable expectation of privacy over the messages on his social media accounts, regardless of his having left the accounts open on an employer laptop. It was clear the messages were meant to be private given the information contained in them. Arbitrator Slotnick noted that a failure to log out of an account is not an invitation to inspect private messages.[3] He also took into consideration the fact that the collective agreement between the CBC and the Canadian Media Guild contained a right for employees to work in an environment that respects their personal privacy.

Arbitrator Slotnick found that the search that was conducted of AK’s social media accounts was not reasonable, and was not carried out in a reasonable manner. No consideration was given to the scope of the search, or to the use of a less intrusive manner of investigation, such as speaking to AK about the situation.[4]

There are a couple of takeaways for business owners from this arbitration decision. First, even if you are supplying your employees with laptops or cellphones, you do not have an unfettered access to the personal information stored on or accessed from those devices. An employee always has a reasonable expectation of privacy over personal information stored on those devices, except where there is serious misconduct, e.g. criminality. Second, this decision highlights the importance of having policies in place about employer-owned devices and the privacy expectations that apply to them, and following those policies when employee personal information is in issue.

Alysia M. Christiaen is available to assist business owners in preparing privacy policies that respect employee privacy interests and protect the interests of the business.

[1] 2021 CanLII 761 (CA LA) at p 12 [CBC v Cdn Media Guild].

[2] R v Cole, [2012] 3 SCR 34 at paras 1-3.

[3] CBC v Cdn Media Guild, supra note 1 at p 30.

[4] Ibid at p 32.

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