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Intrusion Upon SeclusionThe New Privacy Tort and YourWorkplaceJoint HR/Legal PresentationFebruary 15, 2012John Bruce and D...
Invasion of Privacy•   U.S. and U.K. courts have recognized torts•   Canadian courts more cautious to date•   Privacy inte...
Jones v. Tsige•   Bank employee snoops on other bank employee’s    banking records•   Bank disciplines defendant, plaintif...
Jones v. Tsige     One who intentionally intrudes, physically or otherwise, upon the seclusion of     another or his priva...
What the Tort Is•   A personal tort•   Scope will reflect competing interests (free    expression, freedom of the press)• ...
What the Tort Is Not•   About intentional disclosure of private information•   About asking for information (as employers ...
Impact on Corporate Data Security•   Risks driven by pre-existing duties     •   Breach of direct “supervisory” or “custod...
Impact on Computer Monitoring•   Things are changing… very quickly     •   R. v. Cole raises questions about a reasonable ...
Impact on Computer Monitoring1.   Articulate purpose for which you may access stored information2.   Make sure conditions ...
Employer Surveillance and Investigations•   Other potential intrusions?     •   Desk searches     •   Locker searches     ...
Private Investigation Retainers•   An obvious risk that you ought to address•   Structure the decision to retain     •   R...
Investigations and Litigation•   Expect the tort to be plead where your cause case    rests on an investigation•   Expect ...
Intrusion Upon SeclusionThe New Privacy Tort and YourWorkplaceJoint HR/Legal PresentationFebruary 15, 2012John Bruce and D...
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Privacy tort and your workplace

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Privacy tort and your workplace

  1. 1. Intrusion Upon SeclusionThe New Privacy Tort and YourWorkplaceJoint HR/Legal PresentationFebruary 15, 2012John Bruce and Dan Michaluk
  2. 2. Invasion of Privacy• U.S. and U.K. courts have recognized torts• Canadian courts more cautious to date• Privacy interests protected under other torts – defamation, nuisance, trespass• Four provinces with limited statutory torts• Misappropriation of personality tort (Ontario, 70s)• Now, “intrusion upon seclusion” tort recognizedThe Privacy Tort and Your Workplace
  3. 3. Jones v. Tsige• Bank employee snoops on other bank employee’s banking records• Bank disciplines defendant, plaintiff sues• Motion judge dismiss – no cause of action• Court of Appeal recognizes tort, awards $10,000 in damagesThe Privacy Tort and Your Workplace
  4. 4. Jones v. Tsige One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the invasion would be highly offensive to a reasonable person.1. Intentional, unauthorized intrusion2. Upon private affairs or concerns3. Highly offensive to the reasonable personThe Privacy Tort and Your Workplace
  5. 5. What the Tort Is• A personal tort• Scope will reflect competing interests (free expression, freedom of the press)• No proof of damages required, but non-pecuniary damages ordinarily no more than $20,000• Court signals “highly offensive” relates to sensitivity of information (e.g., financial records, sexual practices and orientation, employment)The Privacy Tort and Your Workplace
  6. 6. What the Tort Is Not• About intentional disclosure of private information• About asking for information (as employers do)• A rule that governs the exclusion of evidenceThe Privacy Tort and Your Workplace
  7. 7. Impact on Corporate Data Security• Risks driven by pre-existing duties • Breach of direct “supervisory” or “custodial” duty based in negligence, fiduciary status, contract • Reasonable safeguarding duty under legislation • Are vicarious liability claims a practical risk? • Employee snooping is a known, common risk that you should address through access control technology and well enforced policyThe Privacy Tort and Your Workplace
  8. 8. Impact on Computer Monitoring• Things are changing… very quickly • R. v. Cole raises questions about a reasonable expectation of privacy arising out of personal use • SCC will hear an appeal this year • Tsige suggests that breaching a reasonable expectation of privacy is not enough • But don’t be a test caseThe Privacy Tort and Your Workplace
  9. 9. Impact on Computer Monitoring1. Articulate purpose for which you may access stored information2. Make sure conditions tied to personal use are clear3. Claim your interest in the entire system, including devices issued to employees4. Make clear that access controls are employed for the company’s benefit5. Make clear that passwords are to foster user accountability and are for the company’s benefit6. Deal with access to forensic information7. Ban work on personal devices unless you develop a “BYOD” policy that manages the risksThe Privacy Tort and Your Workplace
  10. 10. Employer Surveillance and Investigations• Other potential intrusions? • Desk searches • Locker searches • Bag searches • In-plant/facility video surveillance • Surveillance outside the plant/facilityThe Privacy Tort and Your Workplace
  11. 11. Private Investigation Retainers• An obvious risk that you ought to address• Structure the decision to retain • Reasonable grounds? • Who decides?• Structure the retainer • Authorized means? Unauthorized means? • Requirements (e.g., video only in public) • Indemnification for breachThe Privacy Tort and Your Workplace
  12. 12. Investigations and Litigation• Expect the tort to be plead where your cause case rests on an investigation• Expect claims from family members• On the positive side, it’s an option for structuring settlement payments for better tax treatmentThe Privacy Tort and Your Workplace
  13. 13. Intrusion Upon SeclusionThe New Privacy Tort and YourWorkplaceJoint HR/Legal PresentationFebruary 15, 2012John Bruce and Dan Michaluk

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