With the internet playing an ever larger role in our lives (and our work), it is no surprise that there has been a corresponding increase in online employee misconduct. In this realm, one of the most frustrating situations for employers relates to anonymous postings that offend company policy. These occur in a variety of ways: from nameless comments on online message boards disparaging the workplace to videos uploaded to sites like YouTube as a form of workplace or co-worker harassment.
The question many employers are left with in such situations is what can be done. After all, even if you have an employee in mind as a potential suspect, how can you successfully connect the misconduct with the worker?
In the past, most employers have relied on traditional investigation techniques. These include collecting workplace related IT records (such as tracing employee online history on workplace computers), other available contextual evidence and interviewing employees directly about online postings. Unfortunately, this type of practice has limits. Employees can lie when confronted with online mischief and not all employee misconduct will be conducted on computers or networks within the employer’s control.
Historically, at this point, most employers would be out of luck. They would either catch the employee through one of the above noted methods or have to hope that the impact of an internal investigation would be sufficient to put a chill on future misconduct of the same nature. However, in recent months, some employers in both Canada and the United States have been turning to the Courts for help when confronted with situations of anonymous online employee misconduct.
Take for instance a recent case from here in Ottawa involving the Ottawa-Carleton District School Board (“Ottawa School Board”). In this case, a video of a confrontation between an upset student with autism, a teacher and an Ottawa police officer was uploaded to YouTube. The Ottawa School Board had reason to believe that an employee had made (or shared) the video using school property and was concerned with protecting the privacy of the student. A variety of users with different names and accounts posted the video online, and would repost the video each time the Ottawa School Board had it taken down.
Frustrated by their lack of progress, the Ottawa School Board went before the Superior Court of Justice in July 2016. There they sought an order that Google (the owner of YouTube) provide any IP address and user account information related to those accounts that had posted the video in question. As the basis for their request, the School Board cited issues of copyright, student privacy and the potential for employee discipline. Google did not oppose the request. The Court then proceeded to order that various IP addresses and subscriber information for the accounts in question be produced.
In the United States, employers are also taking recourse through the courts. A similar situation occurred after an original song owned by Atlantic Records, and intended for use in the movie “Suicide Squad,” was leaked online this summer. This leak was found in connection to a user post on Reddit. Atlantic Records went to court to seek the Reddit user’s IP address. Their basis for seeking the information was that the song had only been shared with a small group of artists and employees who had no authorization to make the song publicly available. Reddit has opposed Atlantic Records request on privacy grounds and the matter remains before the courts.
There are three takeaways for Ontario employers from these cases:
- If you have a situation of anonymous postings online that you believe may be related to employee misconduct, there are options. In select cases, Ontario courts have shown a willingness to order the release of anonymous posting IP addresses and subscriber information.
- Be mindful of the costs involved in this type of pursuit. While the case of the Ottawa School Board went uncontested, the situation with Atlantic Records has turned into a protracted legal fight (and likely an expensive one).
- Finally, have realistic expectations of what a court order for IP addresses or subscriber information may yield. More and more internet users are using virtual private networks to hide their online identify. These tools can provide further stumbling blocks to an online investigation and may result in any Court-ordered IP information still failing to reveal the perpetrator.
This article was originally published on November 15, 2016 on First Reference Talks.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or firstname.lastname@example.org