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Social Media and Data Privacy in Canada

Social media and mobile technology play an increasingly large role in the lives of individuals. These developments have the potential to impact employment relationships both positively and negatively. Mobile technology can allow employers to maintain contact with employees when they are not in the workplace, which is convenient and can lead to greater efficiency. However, the presence of mobile technology in the workplace may also result in distractions and decreased productivity, and may also give rise to privacy concerns. Many employers have also had issues with employees using social media to discuss the employer’s business, or to disparage the employer or other employees. In fact, employment consequences for social media postings have become so common that several dictionaries now recognized the verb “dooced”, which is defined as being fired because of something you have written online.

It is unlikely that an employer accessing publicly accessible information on the Internet could violate an employee’s privacy rights. However, privacy concerns may arise where an employee uses an employer-provided computer or cell phone for personal matters, particularly if such use is permitted or condoned by the employer. The relevant question in such instances is whether the employee had a reasonable expectation of privacy in the computer or cell phone’s contents. Employers often have workplace policies that expressly advise employees that they will have no entitlement to privacy with respect to any activity engaged in on employer-provided technology. Employers may also have policies in place permitting the employer to monitor, search or otherwise police the use of employees’ computers or cell phones. The existence of a policy will not always be sufficient to establish that an employee had no reasonable expectation of privacy. The question of whether or not a reasonable expectation of privacy exists will depend on a consideration of all of the relevant circumstances.

Balances must be struck by employers between the freedom of employees to use the internet on their own time, and their ability to damage an employer’s reputation or workplace relationships by doing so.

1. Can the employer restrict the employee’s use of Internet and social media during working hours?

Employers are entitled to restrict an employee’s use of Internet and social media during working hours. Employers may also place limits on the use of employer-provided technology outside of working hours. Like any workplace rule, an employer’s Internet and social media policy must be clear and well-publicized in order to be relied upon by the employer in issuing discipline.

2. Employee’s use of social media to disparage the employer or divulge confidential information

It is not uncommon for employees to be disciplined or even discharged for just cause for publishing posts on social media that are insubordinate, critical of the employer, or breach employees’ confidentiality obligations. Breaches of confidentiality by employees may be particularly serious for employers expected to safeguard the confidential information of patients or clients.

Although employers are generally not entitled to discipline employees for off-duty conduct, this will not be the case where an employee’s actions are significantly injurious to the interests of the employer, or infringe the rights of other employees. For example, many employees have been disciplined or discharged for engaging in “cyber-bullying” or online harassment of other employees.

For more information on these articles or any other issues involving labour and employment matters in Canada, please contact Robert Bayne, Partner at Filion Wakely Thorup Angeletti (www.filion.on.ca) at rbayne@filion.on.ca
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