Reasonable expectation of privacy

by Nadia Zaman and Stuart Rudner

Facebook has been bombarded by privacy issues recently, ranging from outright data breaches to providing third parties access to user profiles.

Some of us may feel indifferent because it is not materially affecting our everyday lives. But if you are an employer or an employee, you may want to pay attention. Do people really have a reasonable expectation of privacy in their Facebook posts? Can employers access them and use them against employees? How will the courts balance management rights and privacy rights?

In criminal cases, principles have developed over time to analyze whether or not an individual has a reasonable expectation of privacy over her social media posts. It may be helpful to look at the analysis used in the criminal context, as a similar analysis can sometimes be used in the employment context.

In R v Patterson, the Crown sought to rely on communications on Facebook Messenger, images and texts shared in a Facebook group, and Facebook profiles. Some of this information was volunteered by the alleged victim, and the rest was obtained from Facebook through a court order. The defence, arguing that such information breached the accused’s section 8 Charter rights to be free from unreasonable search and seizure, sought to exclude this evidence from trial. The court held that the accused did not have a reasonable expectation of privacy and the documents could be relied upon. 

The court built upon the principles set out by the Supreme Court of Canada in R v Marakah, which laid out the legal test for determining when there is a reasonable expectation of privacy in communications.

Interestingly, the court drew a distinction between messages communicated via Facebook and messages sent via cellphone. The court found that while the accused was unable to control whether the Facebook messages were distributed by other members of the group, and while such messages could be accessed from any platform where you could sign into Facebook, text messages were only limited to the specific phones used.

Specifically, the court found that no reasonable person would expect that communications exchanged between unidentifiable group members which could be readily copied and disseminated to an unlimited audience would remain private. As a result, there was a diminished expectation of privacy in such information. It appears that an individual’s control over the dissemination of her communications and the reasonableness of the individual’s privacy expectation are likely to factor into the analysis.  

While these are criminal decisions, employers can consider the reasoning in these decisions when assessing whether personal communications information can be relied upon by an employer in order to exercise its management rights.

Generally speaking, the public nature of social media posts is likely to diminish an individual’s expectation of privacy in such communications. For example, in an employment case, Wasaya Airways LP v Air Line Pilots Assn., International, the arbitrator stated:

“Where the internet is used to display commentary or opinion, the individual doing so must be assumed to have known that there is potential for virtually worldwide access to those statements.”

In another employment case in British Columbia, Lougheed Imports Ltd v UFCW, Local 1518, the labour relations board held the employees “could not have a serious expectation of privacy when publishing comments on their Facebook websites.”

Some situations may be easier to assess — for example, if the information can be found through a Google search, there is unlikely to be a reasonable expectation of privacy in such information. If the messages were shared in a Facebook group with other members, there is also unlikely to be a reasonable expectation of privacy in such information because the individual has a lack of control over the ability of other group members to disseminate such information.

On the other hand, if the messages were exchanged via a one-on-one conversation, visible only to the two individuals communicating, then it is more likely to attract a reasonable expectation of privacy. Having said that, it is important to keep in mind there will be various factors to consider in any given case.

Employers would be well-advised to develop and implement social media policies and ensure that such policies are communicated to and understood by both employers and employees. Importantly, employers should conduct investigations properly (watch our employment law video update on investigations here).

It is also helpful for employers to consider how privacy legislation impacts their ability to conduct a social media search. In most cases, it will likely be relevant to consider how the information that the employer is trying to rely on is obtained. To learn about the do’s and dont’s for employees on social media, read our blog post here.

Nadia Zaman is an associate at Rudner Law in Toronto.