B. profile. No Breach of Privacy 22. Madam

 B. Madam Justice Cotchin was correct in
finding no breach in the Privacy Act
by the Respondent in posting stills of the Appellant’s conversation with a
third party on her Facebook profile, as well as his overall use and access to
her Facebook profile.

No
Breach of Privacy

22.       Madam
Justice Cotchin correctly applied the Privacy
Act in determining that the Respondent’s overall use and access to the
Appellant’s Facebook account did not breach the Appellant’s privacy (para 97).

Privacy
Act,
supra para 8

 

23.       In
order for the privacy of an individual to be violated, a reasonable expectation
of privacy must exist, and in the case at hand, no such reasonable expectation
existed. In order to determine whether a reasonable expectation exists, one
must look at “the nature, incidence and occasion of the act … and to …
the relationship between the parties” as set out in section 1(3) of the Privacy Act. In order to determine the
nature and degree of privacy expected, one must look to the circumstances of
the situation, “giving due regard to the lawful interests of others” as stated
in section 1(2) of the Privacy Act
(Wasserman). In this case, the Appellant did not have a reasonable
expectation of privacy due to the nature and occasion of the acts as well as
the relationship between the parties.    

Privacy
Act, supra
para 8 s 1(3), s 1(2)

Wasserman, supra para
14 at para 73

 

24.       First
of all, the Facebook conversation between the Appellant and a third party took
place while she was in Canutes’ office. It is an established concept that while
using company resources and in an employment setting, employees are under the
oversight of their superior. As such, conduct in the office is generally under
supervision and monitoring should be expected. This concept was also recognized
by Madam Justice Cotchin, who affirms that privacy in an employment setting
does not give an absolute right to privacy and that in employment contexts,
there should be a lower expectation of privacy (para 54). As such, the occasion
of the act, more specifically the location where the stills took place, negated
any expectation for privacy regarding personal matters. The location has been
found to be a key factor when determining whether reasonable expectation of
privacy is established (Milner).
Thus, the circumstances in which the stills were taken did not entitle the
Appellant to a high degree of privacy in her engagement of personal matters at
the workplace.

Milner,
supra para
16 at para 76

25.       In
addition, the conversation surrounded a topic of issue between her and the
Respondent and therefore the Appellant’s claim for privacy on that personal
conversation competed with the lawful interests of the Respondent, who had an
obligation to ascertain the reasons for which the Appellant was not complying
to his orders. The fact that the Facebook conversation was taking place in the
workplace gave the Respondent an even greater entitlement to pursue this
interest.

26.       Also,
the Appellant was notified and aware that there was a surveillance camera
pointed towards her computer that her superior had access to, however, she
agreed to the installation of said camera. For this reason and all the ones
mentioned above, the Appellant was fully aware that her conversation was not
conducted in a private setting and was being monitored.  Therefore, taking stills from her Facebook
conversation did not breach her privacy because there was no reasonable
expectation of privacy in these circumstances.

27.       Second,
when the Appellant accepted the Respondent’s Facebook friend request she
allowed him access to all of her Facebook material, as well as gave him access
to communicate with her in various ways— including the ability to post on her
wall. Once you accept someone on Facebook, they may post whatever they please
on your wall, unless you restrict your Facebook settings to disallow all or
certain of your friends from posting on your wall. The Appellant, as a social
media coordinator, surely knows the way in which these websites and their
settings work, as well the uncertainty surrounding adding friends whose
identity is unapparent. In accepting the Respondent’s friend request, the
Appellant consented to all that that acceptance allowed a Facebook friend to
do. An act is not considered a violation of privacy if it was consented to as
per section 2(2)(a) of the Privacy Act. Thus
taking stills of her conversation, as well as posting the stills on her wall
cannot be construed as violating the Appellant’s privacy since consent was
obtained both for access to her Facebook page and video surveillance of her
office. Therefore, Madam Justice Cotchin did not err in determining that the
Respondent’s overall use of the Appellant’s Facebook account was a not breach
of the Appellant’s privacy (para 97).

Privacy
Act, supra
para 8 s 2(2)(a)

 

Claim
of Right

28.       Alternatively,
should the court find that the Respondent did in fact violate the Appellant’s
privacy, the Respondent submits that he had a claim of right to do so. Section
1(1) of the Privacy Act states that
to be actionable, the violation of privacy must be done “wilfully and without a claim of
right”.

Privacy
Act, supra
para 8 s 1(1)

 

29.       As mentioned above, “without a claim of
right” has been described in Davis as
“an honest belief in a state of facts which, if existed, would be a legal
justification or excuse”. The Respondent had a legal justification in
protecting the security of his company by ensuring that the Appellant was
complying with his work-related direction. This determination is established by
Madam
Justice Cotchin at paras 8-9
of her judgment: “his actions the Respondent were within Mr. Rance’s
lawful interests as Ms. Martin’s direct supervisor to ensure compliance with
lawful, work-related instructions”.

Davis,
supra para 9

30.       Not
only does the Respondent have the obligation to investigate non-compliance, he
also has an obligation to protect the reputation of the company. When taking
stills of the Appellant’s Facebook conversation and posting the photos on her
wall – the Respondent was attempting to distance the company from the actions
and views of the Appellant, which did not reflect those of the Canutes. By
posting the stills, the Respondent was showing to as many people as he could
–—here 812 — her stance on the trade which differed from that of the company’s.
This allowed the company to distance itself from the actions of the Appellant
and as such preserve their reputation. While the Respondent concedes that this
may have been an invasive way of accomplishing his goal, he did so to protect
the lawful interest of the company. In summary, the Appellant’s non-compliance
obliged the Respondent to investigate the situation by using surveillance of
the Appellant’s Facebook activity and protecting the company’s reputation by
posting the photos of her conversation on her profile.

 

 

Willfulness

31.       Alternatively,
should the court find that the Respondent did in fact violate the Appellant’s
privacy and did not have a claim of right, the Respondent submits that he did
not violate the Appellant’s privacy wilfully. Section 1(1) of the Privacy Act states that to be
actionable, the violation of privacy must be done “wilfully and without a claim of right”.

Privacy
Act, supra
para 8 s 1(1)

 

32.       Hollinsworth
defines “wilfully” from
section 1(2) of the Privacy Act as “an intention to do an
act which they should have known would violate the privacy of another
person”; the Respondent does
not therefore fulfill the definition of wilfully by his actions. The aim
of the Respondent was to investigate the disobedience of this employee — and he
did so by obtaining her consent from the very beginning of his investigation. He obtained her consent to place
video surveillance facing her workspace, directed at her computer, as well as
requested her to accept him as a Facebook friend to access her profile. Though
his Facebook identity was ambiguous, she still accepted his request — he was not pretending to be someone
else and as such her acceptance of his friend request was not misleading and
was at her own risk. As mentioned above, accepting someone’s friend request
without the proper settings
to prohibit their use allows the person to post on their profile. Accepting a
friend’s request thus accepts the possibility of having someone post on the
individual’s wall. If the Respondent had the intention to violate her
privacy, he would not have obtained her agreement for his actions and as such his actions do not
satisfy the wilful aspect of the breach of privacy tort as per section 1(1) of the Privacy Act.

Hollinsworth,
supra para 20 at para 29

Privacy Act, supra
para 8 s 1(1)

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