Employer access to employee e-mails in Canada

21 Jul

I presented at an OBA privacy conference back in early June but held off posting a short paper I wrote for it entitled, “Employer access to employee e-mails in Canada.” The paper argues that there are signs that the traditional “no expectation of privacy” approach to addressing employer access to employees’ stored communications is waning, leaving employers with a choice between giving clearer notice to employees or, alternatively, implementing purpose-based controls to protect employee privacy.

This is a hot topic north and south of the border, and was so even before the Superior Court of New Jersey Appellate Division issued its much discussed decision in Stengart v. Loving Care Agency on June 26th.

Stengart is about whether privilege is waived in solicitor-client communications that are stored on an employer’s system. Our own leading case on this issue is Daniel Potter, which suggests that privileged communications made by employees on employer systems deserve greater protection than other “private” employee communications. Despite this distinction, the reasoning in Stengart is very broad, very pro-privacy and is further reason for employers to pay heed to the issues I raise in my paper.

For a copy of the full paper, please click here. And please feel free to contact me or comment below with your feedback and ideas.

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