Facebook’s Graph Search: New Privacy Concerns?

According to a CBC News article (here), early reviews of Facebook’s new Graph Search feature are raising privacy concerns.  The search feature appears to be eerily effective in mining Facebook users’ information in responding to search queries.

For employers who may be considering using social media to verify information about current or prospective employees, the depth of information revealed by Graph Search highlights the risk that obtaining information through social media could amount to an invasion of privacy, or conflict with human rights laws (see the Ontario Human Rights Commission’s policy on using Facebook information).  Employers should tread carefully before using social media to obtain information about current or prospective employees, since the resulting information (even if obtained inadvertently) could create unanticipated liabilities.

Government limits use of external drives, to avoid data breaches

Here is a link to an interesting Postmedia article on how HRSDC is moving to limit use by employees of portable data devices, following several incidents in which external drives containing Canadians’ personal information were lost or misplaced.  There are many compelling reasons for employers to control how and when employees can remove data from the workplace, such as preventing data breaches, minimizing wrongful competition by employees or former employees, and avoiding claims for breach of privacy.

Does Criminal Responsibilty Still Require a “Guilty Mind”?

Here‘s a thought-provoking article from the Wall Street Journal on the increasing number of offences, under U.S. criminal law, which do not require the state to prove that the accused had mens rea, or a “guilty mind”.  It is somewhat surprising that this development should occur in the United States – birthplace of the Bill of Rights, which has inspired constitutional protection of citizens’ fundamental legal rights in liberal democracies around the world.

Canadian jurisprudence provides an interesting contrast to the recent U.S. experience.  Ever since the Supreme Court of Canada’s decision in R. v. Sault Ste. Marie, which predated the Canadian Charter of Rights and Freedoms, Canadian courts have recognized three different categories of criminal or regulatory offences:

1) “true criminal” offences, which require proof of criminal intent beyond a reasonable doubt;

2) strict liability (or “public welfare”) offences, where it is open to the accused, once the prohibited act has been proven beyond a reasonable doubt, to avoid liability by proving that she or he exercised all due care to avoid the infraction; and

3) absolute liability offences, where proof of the prohibited act automatically results in conviction, without regard to the accused’s intent.

In subsequent decisions following the adoption of the Charter, the Supreme Court has provided further guidance on the state’s ability to create offences which do not require proof of criminal intent.  In Re B.C. Motor Vehicle Act, the Court found that an absolute liability offence which included the possibility of a prison sentence was contrary to the principles of fundamental justice guaranteed by s. 7 of the Charter.  However, in R. v. Wholesale Travel Group, the Court found that strict liability offences, as recognized in R. v. Sault Ste. Marie, are consistent with the Charter, even though they place a reverse onus on the accused to establish due diligence.

Canadian jurisprudence has struck a balance between requiring the state to prove a guilty mind in the case of true criminal offences, and allowing a reverse onus, or even absolute liability in some cases, for regulatory offences designed to protect public welfare, many of which regulate workplace activities.

Time will tell how U.S. courts reconcile the development of offences which do not require proof of a “guilty mind” with the protections of the Bill of Rights.

Social Media Use by Teachers and Students: OCT Recommends Limits

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media.  The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives.  Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media.  Among other guidelines, the advisory recommends that teachers:

  • not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
  • notify parents before using social media for classroom purposes; and
  • use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings.  Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.

Speeding Up Criminal Reference Checks

The federal government is implementing new digital technology to speed up the process for obtaining criminal reference checks.  This change will be welcome relief to employers who are required to perform criminal reference checks on employees or prospective employees, such as school boards and social services agencies.  A link to a CTV article on the announcement is here.

Facebook Postings Just Cause for Dismissal

The BC Labour Relations Board has found, in a recent decision, that an employer had just cause to terminate two employees who posted on Facebook comments highly critical of the employer and other employees.  The Board dismissed claims that the terminations were an unfair labour practice related to the employees’ support of a successful unionization drive.  Interestingly, the Board dismissed any privacy-related claims by the dismissed employees, given the large number of Facebook friends that they each had (100 and 377 respectively), including other employees of the employer.

The Pitfalls of Accessing Private Emails

Here’s a link to a Law Times article, reviewing an interesting decision recently released by the B.C. Supreme Court, which awarded damages for improper publication of the plaintiff’s personal emails.  The parties were former spouses who were already engaged in extensive family law litigation — which sets the unfortunate and messy backdrop for the privacy-related litigation.  The defendant husband published a number of defamatory comments about his ex-wife, by way of emails and internet postings.  He included references to private email exchanges of his former spouse, and which he discovered on an old home computer.

The Court concluded that the defendant had “taken his battle with [his ex-wife] over custody and access far outside the ordinary confines of the family court litigation.”  In addition to defaming his ex-wife, the defendant was found to have breached her privacy by publishing the contents of her private emails.  As a result, he was ordered to pay damages of $40,000 for breach of privacy and defamation.

The breach of privacy aspect of the decision flows from B.C.’s Privacy Act, which creates an express statutory recourse for privacy violations.  Other jurisdictions, including Ontario, have not adopted such statutory causes of action for violation of privacy, so courts in those jurisdictions would not necessarily arrive at the same result.  However, some cases have suggested that there may be a common law tort for invasion of privacy, which could form the basis for similar claims.

The decision provides a reminder of the need to be prudent in accessing – and certainly in publishing – emails in respect of which there is a right or an expectation of privacy.

Also a good reminder of the wisdom of avoiding family law litigation!