The world of the internet has created a new catalogue of rules and often regrettably, a treasure trove of evidence that 10 years ago would not exist.

The Employment Agreement

Many employers, by a signed employment contract, or by overtly and well publicized internal policy guidelines, state clearly to its employees that they are not to use email and the internet for personal purposes and that their use of such services will be monitored. Any employee using the company’s server to write and receive personal email communications and to browse the internet for personal purposes, is to use a word, insane. Every keystroke will be archived and/or may be read at some point in time. This will allow the employer access to every word written. This information can potentially be used to justify termination in many ways. This applies equally to any form of digital communication – texting on company cell phones, company laptops and similar devices.

Even without such affirmative steps it is likely, but not certain, that the employer has such a right implied to it.

The Criminal Code of Canada does prohibit access to private communications. The agreement and or the policy will likely be enough to show an employee consenting to the employer’s access. The exception to the rule clearly contemplates an employer’s need to monitor its equipment and service process. The debate will emerge where there is no such agreement or policy in force – namely, does the employer have the implied right to monitor its server and computer equipment and in the process, have access to the communications made to and fro its employees.

The hot button issue is whether the employer may use such direct or implied powers to gain access to third party email providers, such as hotmail and gmail, when such sites are accessed through the company’s server.

For all these hopefully evident reasons, no employee should contemplate using the company’s server for anything close to personal purposes. Even if the email sent is seemingly quite harmless, the incoming reply from a friend, which cannot be controlled, may inadvertently contain damaging personal information.
In years past, upon the commencement of any litigation, employers audited past expense accounts; now, they also investigate past emails and web browsing activities.

Facebook and Internet Postings

Any statement adversely commenting upon an employer’s business and or publication of trade secrets in any manner, orally, in writing, or by facebook or other internet postings spells trouble. Facebook is simply a means of publication and potentially a very powerful one. Even if the settings are limited to friends, the principle is the same. A statement years ago between two friends over a beer or a coffee harmlessly evaporated and no damage was done. Today the same comments made on a social networking site or other internet postings may have tragic consequences.

Equally facebook postings arguably could put the employer’s business at risk where such postings reveal that the employee is conducting himself in a disreputable manner or illegal manner – which may adversely impact the employer’s business. Conduct outside business hours and not directly connected to the employer, could arguably, still be cause for dismissal where the individual is a well-known spokesperson of the company, or a public representative of it, that is to say, where the employer can show prejudice.

Laptops

The company laptop should be considered just that – the company laptop. It should not be used for any personal purposes, such as DVD’s, storing photographs, whether legal or illegal. It should not be regarded as a briefcase. It does store and carry information, but does so permanently. As we all know, deleting a hard drive on a laptop or desktop does not delete its contents. Even if it is not backed to the server, it should be used only for corporate purposes.