Workplace privacy has become a significant issue for individuals and businesses alike. This is due in part to an increased use of workplace biometrics, the proliferation of social media and smartphone technology, the loss of the traditional '9-5' workplace, and the consequent blurring of work and private life.
Prior to the Court of Appeal's decision in Jones v. Tsige many of us in Ontario had relatively minimal privacy protection at work.
Jones involved two Bank of Montreal employees, Ms. Jones and Ms. Tsige. They worked at different branches and did not know each other. Ms. Tsige, however, had entered into a common law relationship with Ms. Jones' ex-husband. Over a four-year period, she used her position at the Bank to access Ms. Jones' personal banking information approximately 174 times. When Ms. Jones discovered this, she commenced a claim for invasion of privacy.
The Court found in Ms. Jones' favour and recognized a new cause of action: Intrusion Upon Seclusion. Ms. Jones was also awarded $10,000.00 in damages. The Court further stated that in order to establish an invasion of privacy an individual must demonstrate:
- Intentional or reckless conduct by the person breaching your privacy;
- No lawful justification for the person to have invaded your privacy; and that
- A reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.
More recently in R v. Cole, the Supreme Court further clarified what degree of personal privacy may be reasonably expected at work. Mr. Cole was a high school teacher. He stored nude images of an under-age female student on his school-provided laptop. A technician, performing maintenance on Mr. Cole's laptop, found the images and reported it to the school. Mr. Cole was subsequently charged with possession of child pornography.
In rendering judgment, the Court confirmed that:
- Individuals may reasonably expect privacy in the information contained on their own personal computers. The same applies to information on work computers, at least where personal use is permitted or reasonably expected.
- Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user's biographical core. Vis-à-vis the state, everyone is entitled to expect privacy in personal information of this kind.
- Workplace policies and practices may diminish an individual's expectation of privacy in a work computer, however, these sorts of operational realities do not in themselves remove the expectation entirely. The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.
In light of these recent developments, employees have a right to expect a reasonable degree of privacy in the workplace, and in work-provided equipment. Employers, on the other hand, may wish to consider implementing and enforcing clear usage policies before issuing laptops or smartphones.