Employees’ Digital Privacy in the Workplace: Supreme Court of Canada
The Supreme Court of Canada decision in R v Cole, 2012 SCC 53 may have a significant impact on how employers manage the use of digital devices in the workplace. While a constitutional and criminal decision at its core, the case nevertheless recognizes the importance of employees’ reasonable expectation of privacy when using work computers and other digital devices.
In Cole the Court concluded that an objectively reasonable expectation of privacy existed for the laptop. Although the Court noted certain factors against such an expectation of privacy including the presence of a School Board policy manual that expressly asserted ownership over all data contained on its computers and warned that “users should not assume that files stored on network servers or hard drives of individual computers will be private”, it found that those factors were not determinative.
Employers should accordingly be very cautious in ordering a search of employees’ workplace computers.
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