There has been lots of talk about employee privacy and employer work systems since the Ontario Court of Appeal’s March 22nd judgement in R. v. Cole. Here is, for example, some commentary that Michael Power posted yesterday on his privacy blog, Dot Indicia.

I wrote an article entitled Employer Access to Employee E-mails in Canada that was published in the September 2009 issue of the Canadian Privacy Law Review. Here is my own position on what employers need to do, a position reinforced by the Cole decision:

The tension demonstrated in the above noted cases is likely to take some time to be resolved. The uncertainty alone, however, is good reason for employers to re-think their approach to managing employee computer use. It is less clear what to do.

One approach is to give employees clearer notice. If more permissive rules on personal use are the basis for changed expectations, employers may work harder to ensure employees are making informed choices about the sacrifice of privacy associated with personal use. Under this approach, computer use policies need not change much at all; the solution lies more in their implementation and, more specifically, in communication measures such as periodic acknowledgements, log-in notices and the like.

While the “clearer notice” approach is appealing in its simplicity, it is also somewhat risky given the relationship between permissive personal use rules and acceptable workplace privacy norms. For one, managers sensitive to the type of “private” content generated by personal use might resist and send inconsistent messages about policy. This practical risk is well-illustrated by a much-discussed case in which a California court held that a public employer violated several employees’ privacy rights by auditing their text messages. This outcome was based on a finding that a supervisor had implemented an informal process of allowing employees to pay for “overage” charges as a means of avoiding text message audits. But even if managers can be suitably controlled, a court or labour arbitrator may still reject a policy that permits personal use and relies strictly on notice. Personal use and zero privacy don’t sit well together, so a clear “no privacy” notice might not always convince an adjudicator that an expectation of privacy is unreasonable.

The more cautious employer will implement a new form of computer use policy that reserves the right to meet all legitimate purposes identified above, but also includes privacy controls to ensure that use of more sensitive types of information on its system (e.g. the content of e-mails and information revealing of keystrokes) is based on reasonable necessity. I am not suggesting that management fetter its rights in a manner that sacrifices management interests. If an employer, for example, feels that investigations based on “reasonable suspicion” instead of “reasonable grounds” are justified, then it should promulgate policy that contemplates investigations based on a reasonable suspicion. Likewise, if an employer feels that routine and/or random audits are justified, it should promulgate a policy that contemplates routine and/or random audits. In some circumstances — where employment privacy legislation applies for example — proof of business justification might be required, but an employer faced with a policy challenge should be well-positioned to argue that the chosen approach is measured and moderate compared to the traditional type of policy that has met with arbitral and court approval.

Here is a link to the full article. Reprint courtesy of LexisNexis.

Posted on today’s Ontario Court of Appeal judgement over at Slaw.

In the United States, the Federal Rules of Appellate Procedure limit appellate briefs to 14,000 words.  The Seventh Circuit Court of Appeals recently faced a case where one of the parties had submitted an 18,000 word brief.  The court issued an order to show cause why the brief should not be “stricken and/or sanctions imposed for failing to comply with Rule 32 and making a false representation to the court.”  The court heard argument that the error was inadvertent.  The court rejected that argument.  In a decision written by Justice Posner, this stern warning was issued:

The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.  The motion to file an oversized brief is denied and the judgment of the district court summarily AFFIRMED.

A link to the decision,  is here.

In Rodrigues v. Toop, 2011 ONSC 794, the Ontario Superior Court of Justice court recently considered whether qualified privilege applied to a communication in a public space.

The Plaintiffs were members of a union local executive.  The Defendant was a union steward who distributed a flyer in a public car park to individuals who identified themselves as union members, containing allegedly defamatory statements about the members of the executive.  The issue was whether qualified privilege attached to the communications.  The Plaintiffs argued that when the flyers were distributed in a public place and not at a union meeting, qualified privilege no longer applied.

The court held that the Defendant’s method of communication “was less than ideal” but that qualified privilege attached because, while the distribution of the flyer took place in a public space, “it was not a public message”.  The key factual finding for the court was that there was no evidence that the Defendant had distributed the flyers to any member of the general public (ie. to a non union local member) and that therefore “the reputation of the Plaintiffs was not tainted in the general public”.

This decision represents a potentially important application of the principle that qualified privilege will only attach where the person who makes the statement has an interest or a duty to make it to the person to whom it is made, and that the other person has a corresponding interest or duty to receive it.  It remains to be seen whether the “public space” vs. “public message” analysis will take hold.

A link to the decision is here.