Court of Appeal addresses privacy on work computers

The Ontario Court of Appeal ruling in R v. Cole (a criminal case involving allegations of possession of child pornography found on a teacher’s board-issued laptop) has significant implications in the employment law realm.

The issue before the Court was whether or not the search and seizure of the entire hard disk on the employee’s laptop was unreasonable under Charter protections.  The Court decided that given the employee’s reasonable expectation of privacy, the police had invaded Mr. Cole’s privacy and that the evidence obtained in the improper search ought to be excluded. 

That said, the Court was prepared to permit evidence (a screen snapshot and the temporary internet files) collected by the school board’s IT technician through what it termed the “implied right of access” that an employer has over its computer network. 

Had the school board had a clearly worded internet/IT use policy which permitted it to monitor and search its employee’s computers (not just their email communications), it is likely that the employee’s expectation of privacy would not have proven such a relevent factor.   

In light of this decision, employers will want to review and update policies regarding the use of company computers, servers, email and networks, and ensure that those policies will permit monitoring of work and personal use on all company-issued hardware, including laptops, desktops and cellphones.