Privacy Protection in the Digital Workplace

Privacy has been described by the Supreme Court of Canada as "an essential componentof what it means to be 'free.'" Protection of an individual’s right to privacy is "predicated on the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain." The importance of privacy has been acknowledged as a fundamental human right; but just as no other recognized human rights or Charter rights are absolute, the right to privacy must also yield to competing rights in certain circumstances.

In the workplace, the employer's rights to monitor quality control and employee productivity as well as to ensure a safe and harassment-free workplace often warrant an incursion on employees’ rights to privacy. Governing the appropriate balance to be struck between employers’ rights and employees’ privacy interests is a patchwork of privacy legislation, individual employment contracts, Charter rights, and the newly recognized tort of intrusion upon seclusion.

As technology has advanced and facilitated the spread of information and the ease with which organizations can communicate and store personal information, the need for employers to monitor their employees has become more acute. Employees’ use of computers, the Internet, email, and social media at work (for work-related and non-work-related purposes) presents new concerns for employers, including the effect of such use on productivity, workplace harassment, and their liability for their employees’ online activities. Employers may be found liable for their employees’ online defamatory remarks, copyright and trademark infringement, harassment, and other illegal conduct in the course of employment. Workplace harassment may be more readily facilitated through the use of company email or through the sharing of hateful or offensive material from the Internet. As a result of these concerns, many employers take the position that monitoring their employees’ computer usage and online activities is necessary to detect activity that may negatively affect the business. Furthermore, employers may have a duty to monitor employees in order to meet the legal occupational health and safety obligations to provide a harassment free and non-discriminatory workplace.

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Originally presented at The Law Society of Upper Canada's Special Lectures 2012: Employment Law and the New Workplace in the Social Media Age program on April 25 and 26, 2012.


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