Employer Monitoring of the Corporate E-mail System: How Much Privacy Can Employees Reasonably Expect?

Marc-Alexandre Poirier

ABSTRACT

That many employers monitor their employees' e-mail messages has become an undeniable fact of the modern workplace. The legality of this practice, however, is open to question. Among the numerous legal issues it raises, none is more important than that of whether employees have a reasonable expectation of privacy when they use the corporate e-mail system. Indeed, the resolution of this issue is pivotal to determining whether employers who conduct e-mail monitoring risk exposure to civil liability for invasion of privacy. This article proposes a contextual approach to resolving the issue, drawing on principles developed by the Supreme Court of Canada under section 8 of the Canadian Charter of Rights and Freedoms. This approach calls for consideration of the various factors that could affect employees' privacy rights in the context of workplace e-mail use. The article begins by conducting a detailed analysis of the underlying technical aspects of e-mail technology and of how they might bear upon the reasonable expectations of privacy of its users. The article then examines factors relating to the work environment that may also impact on employees' reasonable expectations of privacy. A review of these contextual factors suggests that employees are entitled to a certain level of privacy when they use employer owned e-mail systems.

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Citation: (2002) 60(2) U.T. Fac. L. Rev. 85.
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