SCC Affirms Individuals May Have Expectation of Privacy in Electronic Communications

On December 8, the Supreme Court of Canada (SCC) released its decision in two cases concerning individuals' reasonable expectation of privacy in text messages and other electronic communications. In R. v. Marakah¹ and R. v. Jones,² the Supreme Court of Canada held that an individual can reasonably expect his or her text messages will remain private even after those messages are received by another person or stored on the server of a telecommunications provider. Marakah and Jones both deal with the constitutional right to protection against unreasonable search and seizure however the Supreme Court's analysis has implications for employees' expectations of privacy in the workplace.

What You Need To Know

The SCC held in both cases the senders of the text messages had a reasonable expectation of privacy in the messages even though they had been sent to other devices and were no longer in the senders' exclusive control. The following key takeaways are relevant to the broader business perspective.

• An individual may still have a reasonable expectation of privacy even where they do not have exclusive control over their personal information. The fact a recipient can choose to disclose an electronic communication does not negate the reasonableness of the sender's expectation of privacy in that communication.
• An individual's expectation of privacy may be reasonable even if there is no contractual obligation to keep information confidential. The Supreme Court held that the fact the appellant in Jones did not have a confidentiality agreement with his telecommunications provider was a consideration but not dispositive of the issue.
• Companies should ensure their workplace policies address which employee communications the employer can access and how those communications may be used by the organization in order to establish a mutual understanding of the scope of any employee expectation of privacy.
• Marakah and Jones should not be read as establishing a blanket reasonable expectation of privacy in all electronic communications. Establishing a reasonable expectation of privacy still requires a case-by-case analysis of all of the circumstances.

The Cases

In Marakah, the appellant sent text messages to another individual discussing illegal firearms transactions. Police searched the recipient's phone and found incriminating text messages from the appellant. In Jones, police seized incriminating text messages directly from the telecommunications provider. In both cases, the appellants argued the text messages should not be admitted as evidence because the searches violated their right to be free of unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. In both cases, the lower courts held that the messages were admissible because, once sent, the appellants could no longer have a reasonable expectation that they would remain private. The SCC overturned those decisions.

Implications for Employers

Marakah and Jones deal with the privacy rights of accused in the context of unreasonable search and seizure by the state in a criminal investigation.

In the private sector context, how companies handle employees' personal information is governed by common law and statutes, including the Personal Information and Protection of Electronic Documents Act and comparable provincial legislation. While an employer's privacy obligations are different than those of the state, the reasonable expectation of privacy analysis can play an important role in determining whether companies have their employees' consent to use personal information in particular ways.

With the rise of Bring Your Own Device (BYOD) programs and intra-office instant messaging platforms, the division between personal communications and work communications has become blurred. Correspondence that might once have been considered personal may now be stored on an employer's servers, and company correspondence that previously might never had left the office may now rest on an employee's personal mobile device.

Marakah and Jones affirm that whether an expectation of privacy is reasonable does not depend on who owns, controls, or has access to an electronic conversation. Private sector employers should ensure the policies and contractual commitments that govern their employees' use of electronic messages in the workplace clearly spell out which communications the employer can access and the circumstances under which the employer can use those communications for investigative, disciplinary and other purposes. Employers should also ensure that employees are aware of these policies through proactive communication and training.

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¹ See: R. v. Marakah, 2017 SCC 59.

² See: R. v. Jones, 2017 SCC 60.