The BlackBerry battle

Pending CIBC case raises the sensitive issue of e-mail privacy

Dishonest. Reprehensible. Egregious. These are the adjectives the Canadian Imperial Bank of Commerce used to describe the actions of a group of former employees, according to a recent legal filing.

The bank has accused the former employees of misappropriating business opportunities for the benefit of Genuity Capital Markets, a new investment banking firm started by ex-CIBC executives.

In its lawsuit, CIBC alleges these employees took confidential information and recruited colleagues to defect to Genuity while they were still working for the bank. One of the key evidentiary issues pertains to several personal e-mails and BlackBerry messages between former employees sent through personal identification number (PIN) messages.

PIN messages are those sent between BlackBerry users through a device’s PIN rather than a normal e-mail address. Up until the launch of CIBC’s lawsuit, it was thought by many BlackBerry users that PIN messages were a private means of communication. Now that’s not so clear, and whether those PIN messages are the private property of the employees or the employer will likely be decided by a judge.

As use of e-mail, BlackBerries, palm pilots and notebooks has increased dramatically in the workplace, employers have struggled with how to handle Internet abuse. With employees gaining access to technological means both inside and outside the workplace, like CIBC’s former employees, abuse of Internet privileges can have serious legal and financial implications for employers.

Not only may employers be exposed to liability for harassment or copyright infringement due to downloads, but they may also experience decreased productivity resulting in significant lost revenues and increased costs. Some may even be faced with issues like those highlighted by the CIBC lawsuit.

Although many employers have sought to introduce measures to monitor use, some of these have led to problems between employer property and employee privacy rights. With the Personal Information Protection and Electronic Documents Act (PIPEDA), the federal government’s privacy legislation, there are now extensive protections for employees.

Is an employer’s collection of e-mail a violation of privacy?

Basically the employee must be advised of the purpose for which personal information is being used and give consent specifically for that purpose. It may be successfully argued by an employee that unless specific consent has been given for an employer’s collection of random e-mails, the employer has violated PIPEDA.

Video surveillance is one issue that has been brought before the privacy commissioner. The Office of the Privacy Commissioner found that an employer was violating PIPEDA in using video cameras. (For more information about that decision, click on the related articles link at the bottom of this page.)

In addition, under s. 184 of the Criminal Code, it is an indictable offence to “willfully intercept a private communication.” Whether an e-mail is considered a “private communication” remains unknown. While Canadian courts have still not addressed the issue as to whether employers have a right to monitor employee e-mail and Internet use, the issue of excessive personal use of the employer’s computer property has been addressed quite extensively.

Excessive personal use cause for dismissal

In Syndicat Canadien Day Communications, D’energie et du papier, section local 522 CAE Electric Ltee, the grievor, who did not use the Internet as part of his job responsibilities, had been terminated for excessive use of the Internet.

After a co-worker told the employer the grievor spent too much time online, the employer investigated. It found the grievor had spent about 300 hours on the Internet in less than five months, accessing mostly pornographic material. In the same time he had claimed about 480 hours of overtime.

Because the grievor was aware of the employer’s Internet policy, having acknowledged it and signed it, the issue for the arbitrator was the amount of time which had been wasted which was justified in the disciplinary action, rather than the content of the material itself.

In another arbitration, Mount Royal College and Mount Royal Support Staff Association, the grievor was dismissed due to excessive use of the employer’s resources and equipment for her part-time dog breeding business.

While the arbitrator found the employer’s policies were ambiguous and inconsistently applied, he found the amount of time she had spent using company equipment during regular work hours was problematic. As such, the employer’s dismissal of the grievor was upheld.

Creating an Internet-use policy

To ensure Internet access is not being abused, employers are strongly encouraged to create Internet-use policies and monitor use by its employees. In creating such a policy, employers should include the following points:

•the employer owns the computer resources;

•the employer has the ability to monitor, access and disclose material related to the computer system;

•the purpose for which computer resources are provided;

•employees should not have any expectation of privacy regarding computer resources;

•certain Internet use is acceptable and certain Internet use is unacceptable;

•anything sent by e-mail over the Internet may not be confidential; and

•the consequences for employees who contravene the policy.

The Internet policy should be given to every employee and signed by every employee, acknowledging its contents. It may also be prudent to post such a policy within the high-traffic areas in the workplace. While such a policy may not prohibit situations like those at CIBC from arising, the policy will help in guiding the employee as to what is acceptable and not acceptable until the issue of whether e-mail is employer property is properly litigated.

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].

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