Workplace Privacy: Piecing Together Jones, Cole and A.B. V. Bragg: Towards a ‘Proportional’ Model of Shared Accountability

Canadian Labour & Employment Law Journal, 18(2), pp. 493-515, 2015

18 Pages Posted: 26 Apr 2016

See all articles by Karen Eltis

Karen Eltis

University of Ottawa - Faculty of Law; Affiliate- CITP Princeton

Date Written: April 20, 2014

Abstract

In R. v. Cole, the Supreme Court of Canada observed that it would “leave for another day the finer points of an employer's right to monitor computers issued to employees”. At first glance, the decision is only indirectly applicable to private sector employees. However, as Charter values are understood to permeate the private sphere, it nevertheless offers precious insight into the longstanding issue of internet use and email surveillance in the workplace (). In light of the dearth of much-needed guidance on that front, the following will endeavor to glean an improved understanding of the direction in which workplace privacy law is – or should - be heading, on the heels of recent privacy case law. Although the decisions underscored herein are not at first glance related, this article posits that when R v Cole is read together with other recent opinions - specifically Jones v Tsige and AB v Bragg - they seem to herald the emergence of a far more robust and nuanced conception of workplace privacy. It is a conception that notably demarcates itself from earlier case law wherein a US-style property-based approach to privacy prevailed. What is more, the latter conception appears supplanted – however incrementally - by a hybrid model of ‘privacy self-management’ that lends itself particularly well to the Canadian context and is characterized by principles of proportionality. Taken a step further, we glean a view of Internet privacy in the workplace predicated on shared accountability. This is a simplification that may be understood as a conceptual model organised around reciprocal affirmative duties: a multiplicity of actors – employees and employers (rather than companies, particularly large companies, alone) - are proactively held to account for privacy protection. Specifically, the employer is expected to use means that are rationally related and minimally intrusive (in Oaksian terms) to limit employee privacy as well as to expressly elucidate these policies via privacy awareness education in order to secure meaningful consent. Employees, for their part, must take responsibility for their own privacy; they are held to affirmatively label and cloister material considered private

Keywords: Workplace surveillance; privacy; comparative law; employment law

Suggested Citation

Eltis, Karen, Workplace Privacy: Piecing Together Jones, Cole and A.B. V. Bragg: Towards a ‘Proportional’ Model of Shared Accountability (April 20, 2014). Canadian Labour & Employment Law Journal, 18(2), pp. 493-515, 2015. Available at SSRN: https://ssrn.com/abstract=2767544

Karen Eltis (Contact Author)

University of Ottawa - Faculty of Law; Affiliate- CITP Princeton ( email )

57 Louis Pasteur Dr
Ottawa
Canada

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