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

This paper provides an overview and analysis of three recent decisions on privacy rights by Canada's highest courts, and considers their implications for workplace privacy law, particularly the issue of employer monitoring of employees' e-mail and internet use. In contrast to earlier case law, in which a U.S. -influenced, property-based approach to privacy prevailed, these decisions, in the author's view, signal the emergence of a more meaningful and nuanced conception of workplace privacy. The author further argues that this concep- tion is consistent with a movement (however incremental) towards a model of "privacy self-management" in the workplace, which is characterized by two key principles - proportionality and shared accountability. This model recognizes that, in ensuring a proper measure of privacy protection for employees, work- place parties are under reciprocal affirmative duties. In taking action that may infringe employee privacy, the employer would be required to use means that are rationally related to legitimate business objectives and that are minimally invasive of privacy, as well as to carefully elucidate any applicable policies through the provision of privacy awareness education. Employees, for their part, would be required to accept a share of the responsibility for their own privacy, by clearly indicating to the employer what material or content they consider to be private.