Court: Employees have a right to privacy, even on their employer-provided BlackBerry/laptop

Didn’t seem this coming, but it appears to be an entirely sensible decision. Personal use of workplace-provided devices is bound to creep in, and privacy laws should take that into consideration.

The Globe And Mail – Computer ruling seen as landmark workplace decision

In what is being called a landmark decision, a Ontario court this week ruled that employees have a right to privacy for material contained on a work computer.

The judgment from the Ontario Court of Appeal … agreed with a trial judge that by giving tech devices to employees, along with permission to take them home on evenings and vacations, the employer gave “explicit permission to use the laptops for personal use.”

The ruling has significant implications for workers who use electronic devices including cell phones for personal purposes – “which is pretty well everyone” – as well as employers who might like to keep tabs on employee use of tech devices, said Frank Addario, of Sack, Goldblatt, Mitchell LLP, who argued the appeal for defendant Richard Cole.

“A big issue here is the tradeoff that employers expect employees to make,” Mr. Addario said. “If they want their employees to be available 24/7 and are giving them BlackBerrys and PCs to contact them outside of business hours, it is inevitable that people are going to use those devices on their personal time as well as business time. That’s an inevitable consequence of asking people to be on call beyond eight hours a day,” he said.

“That means artifacts of personal, private life are going to get left on the electronic devices, regardless of who paid for them,” Mr. Addario said. And the court is saying that employers are going to have to respect that these are the employee’s private property, he said.

“I would call the court of appeal finding a seismic shift in the way privacy rights are dealt with in the workplace,” said Daniel Lublin, a lawyer with Whitten & Lublin LLP in Toronto.

“Until now most people generally assumed there was no reasonable expectation of privacy in work computers, and that would extend to work e-mail and Internet use,” he noted. “The court has now resoundingly said that there is a reasonable expectation of privacy in work technology that leaves the office.”

Leave a Reply

Your email address will not be published. Required fields are marked *