social media and privacy in the workplace

7/27/2019 Social media and privacy in the workplace

1/9

CACE PAPER SUMMARY

The paper in your materials about defamation of employees by individuals

from outside the organization and answers the general question, Whatshould an employer do?

I wanted to write it for you because I am now regularly asked to become

engaged in these issues and have formed the view that our and our clients

instincts lead us in the wrong direction.

This may be based our natural sympathies for the helpless employee. Itmay be based on our contempt for the outsider people who use the

internet poorly certainly draw my own contempt. But we tend to join arms

far too quickly with our employees, which in my view is very dangerous.

The paper explains the danger in detail. Here Ill just give you four reasons

in bullet style:

1. An internet takedown effort is not as simple as it seems and will

often require commitment through to trial. This is a function of the

properties of a defamation cause of action, which does not ordinarily

allow for injunctive relief. It is also a function of the outsider profile:

the typical outsider has nothing to lose and is looking for a fight.

2. There is no established duty to fund or otherwise support a

takedown effort merely because an employees reputation is

damaged in the course of work. Employers have a clearduty to

provide a safe and harassment free work environment and a


2/9

- 2 -

recognized discretion in selecting how to respond to harmful behavior.

Employers have no recognized duty to protect or repair an

employees reputation nor should they as a matter of policy given the

subjective nature of reputational harm the recognized public interest

against fomenting litigation.

3. Supporting an employee just a little is unfair to the employee and

engenders prejudice through reliance. In most cases the best thing an

employer can do for an employee who has been targeted is tell them

straight up, This is a serious problem, we will support you in theworkplace but harm to your reputation is a personal matter and you

ought to seek legal counsel quickly to see about your options.

4. The outsider may be right. When the defamatory statement relates to

an employees work, engaging with the outsider based on an

assumption the employee behaved properly is extremely risky. If the

assumption fails you will lose in a very public and very harmful way.

If those points make you uncomfortable I may just be right in my theory

about where our instincts take us. But Im only issuing a warning. In some

cases joining arms with our targeted employees may be fully appropriate. I

simply invite you to read the paper and deal with some of its

considerations first.

DISCUSSION AND COMMENTARY

Comment on importation of American Law


3/9

- 3 -

-In reading Philips paper it struck me that theres a values overlap in some

areas and a strong disconnect in others

-Weve had a shared negative reaction to the practice of asking employeesfor social media passwords

-It resulted in legislation in Nova Scotia that never got off the ground

-I could see that coming around again not a big deal for employers unless

it comes in a form that creates other complications

-In contrast, the NLRB rules are amazingly out of synch with our views on

an employees duty of fidelity and the scope of speech thats protected

under our labour relations statutes

-To suggest that your sales force can bitch in a quasi-public forum about

the crappy food you buy for a client event because they are on commission

is just remarkable

-My feeling is that the average Canadian labour board adjudicator who

reads that might feel the same way

Comment on the Kone case

-I dont believe Kone is broadly significant

-Involves the use of structured data that gives limited insight into the

personal aspects of ones life


4/9

- 4 -

-Also involves a use that was controlled well by policy and technology and

did not represent the kind of eye in the sky management that our law

quite clearly proscribes

-Facts

-Data recorded in 11 minute increments

-Batch processed and transmitted to Kone 4 to 6 times a day

-Its a specific balancing of interests in this context

-We ought to recognize that video surveillance represents a far greater

intrusion (theres authority from the OPC on this point)

Comment on striking a balance in implementing new policy

-Strike balance by employing a good design and development process

-The Ontario commissioners hobby horse is a philosophy she calls

privacy by design which means engaging in an early analysis that

bakes privacy into the initiative

-Thats right

-Now that we have the Supreme Court of Canada recognizing that

employees have inherent privacy rights we better recognize that in all our

implementations, call the privacy offers in and do the analysis


5/9

- 5 -

-That will avoid problems in justification and problems with irrationality

that are demonstrated in the Mechanical Contractors drug testing case you

noted to us [2013 CanLII 54951 (ON LA)]

Comment on WSIB claims resulting from disparagement

-First, our workplace insurance regimes do not allow for claims for damage

to reputation thats clear

-Claims are for disablements arising out of and in the course of

employment (subject to legislative presumptions that tend to favourworkers)

-In our jurisdiction at least there is an extra requirement for a mental stress

claim must be an acute reaction to a sudden and unexpected traumatic

event (WSIB policy says death threats, bomb threats)

-Disablement that arise out of and in the course of employment?

-Could very well be a strong enough link

-Female police officer disparaged after a DUI charge goes public - NO

-Junior lawyer who is targeted by an angry plaintiff - YES

Comment on reference letter risks

-Common practice today is to default to references that include facts that

can only be construed neutrally

-Date of hire


6/9

- 6 -

-Position duties

-Date of termination

-Thank you very much

-This approach is more conservative than justified there is a benefit of

sharing both positive an negative references

-Are practical risks of issuing a negative letter, but protected by defamation

defences

-Might give negative facts justification and qualified privilege

defence Miller v Bank of Nova Scotia (2002, Lederman)

-Employer can also provide a negative opinion fair comment

defence

-I, for one, dont see there being particularly significant risks in writing apositive reference letter provided there provided facts are provided based

on due diligence and comments are fair practically, employers dont often

sue other employers for bad references (American case law. Not aware of

any Canadian case law.)

Comment on defamation by current employees

-We pursue defamation by employees under a different and more forgiving

legal framework than the defamation framework

-Breach of the duty of loyalty and fidelity


7/9

- 7 -

-Leading case is Fraser v PSSRB a public sector case but I view it as

relevant generally

-The point that is worth making is that its not any nexus to an employersinterests that gives an employer jurisdiction to punish

-The test in my view is one of significant interference with a legitimate

interest significant doesnt create a high standard akin to not trivial

-Example is the recent Nova Scotia janitor case

-A may December relationship

-40 year old school caretaker, 15 year old school student, different

school

-Consensual and developed outside school context

-Finding private, no employer jurisdiction

-Affirmed by NSCA

-Concern must be substantial and warranted

-When we give advice on this we make a very contextual judgement call

-We say, thats not quite over the line and thats over the line, which isall we can do

-Here are two pieces of practical advice in expression cases


8/9

- 8 -

-One cases turn on the precise meaning of the words spoken often our

analysis is too general

-Two the meaning of the words will often be derived from the context screen caps are often taken too narrowly relevant evidence is missed

TEST FOR QUALIFIED PRIVILEGE

At the heart of the defence of qualified privilege is the notion of

reciprocity or mutuality. For the defence to apply, [a] defendant must

have some interest in making the statement and those to whom thestatement is made must have some interest in receiving it

.

Thus in the context of the defence of qualified privilege, malice must be

proved by the plaintiff to defeat the presumption of good faith. And in this

context malice means:

(a) lack of honest belief in the truth of the libelous statements; or

(b) use of the privileged occasion for an improper purpose

THE TEST FOR FAIR COMMENT

It is therefore appropriate to modify the honest belief element of the faircomment defence so that the test, as modified, consists of the following

elements: (a) the comment must be on a matter of public interest; (b) the

comment must be based on fact; (c) the comment, though it can include

inferences of fact, must be recognizable as comment; (d) the comment must


9/9

- 9 -

satisfy the following objective test: could any person honestly express that

opinion on the proved facts?

social media and privacy in the workplace

Documents