Business bites: A question of work computers and privacy

A recent Canadian case regarding the ownership of information stored on work computers serves as a reminder to employers to keep internet and email policies up to date.

The Ontario Court of Appeal case of R v Cole involved a high school teacher who had authority to remotely access data stored in student email accounts.

While carrying out an audit of a student's account, the teacher came across photos of another high school student naked. He saved these photos to his own work laptop. The photos were subsequently discovered by the school's computer technician. The school seized the laptop and passed it on to police, who searched it without a warrant.

The errant teacher was not happy. When it came to a criminal prosecution, he sought to exclude evidence obtained by police from his laptop on the basis that the search and seizure of his laptop was unreasonable.

The Court of Appeal agreed and overturned an earlier decision to allow the evidence to be used against him. It did not matter that the laptop belonged to the school and the school consented to the search.

The teacher's expectation of privacy did not extend to his employer. The Court of Appeal held that it was within the technician's duties to maintain the school's systems and that the school was therefore acting within the scope of its normal responsibilities when it found the pictures.

More importantly, the court noted that its decision was based on the particular facts at hand, in particular that it was the school's technician who found the photos. The technician was acting in the normal course of his duties and the search was therefore reasonable.

The court commented that the school's practice of allowing teachers to use their work laptops for personal purposes created a reasonable expectation of privacy, despite the school having an express written policy that all information on school computers belonged to the school. The court said what was required was a more robust policy that allowed it to monitor, search or police the use of school laptops.

This issue is an increasingly important issue for New Zealand employers to address. It is becoming more and more common for employees to be given work laptops and smart phones which allow them to be at their employer's disposal round the clock. Where employees are expected to be available after hours, it is inevitable that employees will use their work equipment for personal as well as business use.

What employers can take from this case is that a blanket policy claiming ownership of all information stored on work laptops and smart phones may not be enough. Employers should consider reviewing their workplace policies to ensure that they have the right to monitor and search internet and email traffic, and review electronic files, whether work related or not.

Sally Peart is a partner with Mitchell Mackersy Lawyers.
speart@mitchellmackersy.co.nz

 

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