Madam Justice Cotchin was correct infinding no breach in the Privacy Actby the Respondent in posting stills of the Appellant’s conversation with athird party on her Facebook profile, as well as his overall use and access toher Facebook profile.NoBreach of Privacy22. MadamJustice Cotchin correctly applied the PrivacyAct in determining that the Respondent’s overall use and access to theAppellant’s Facebook account did not breach the Appellant’s privacy (para 97).PrivacyAct,supra para 8 23. Inorder for the privacy of an individual to be violated, a reasonable expectationof privacy must exist, and in the case at hand, no such reasonable expectationexisted. In order to determine whether a reasonable expectation exists, onemust 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 thenature and degree of privacy expected, one must look to the circumstances ofthe situation, “giving due regard to the lawful interests of others” as statedin section 1(2) of the Privacy Act(Wasserman).
In this case, the Appellant did not have a reasonableexpectation of privacy due to the nature and occasion of the acts as well asthe relationship between the parties. PrivacyAct, suprapara 8 s 1(3), s 1(2)Wasserman, supra para14 at para 73 24. Firstof all, the Facebook conversation between the Appellant and a third party tookplace while she was in Canutes’ office. It is an established concept that whileusing company resources and in an employment setting, employees are under theoversight of their superior. As such, conduct in the office is generally undersupervision and monitoring should be expected. This concept was also recognizedby Madam Justice Cotchin, who affirms that privacy in an employment settingdoes 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 occasionof the act, more specifically the location where the stills took place, negatedany expectation for privacy regarding personal matters. The location has beenfound to be a key factor when determining whether reasonable expectation ofprivacy is established (Milner).
Thus, the circumstances in which the stills were taken did not entitle theAppellant to a high degree of privacy in her engagement of personal matters atthe workplace. Milner,supra para16 at para 7625. Inaddition, the conversation surrounded a topic of issue between her and theRespondent and therefore the Appellant’s claim for privacy on that personalconversation competed with the lawful interests of the Respondent, who had anobligation to ascertain the reasons for which the Appellant was not complyingto his orders. The fact that the Facebook conversation was taking place in theworkplace gave the Respondent an even greater entitlement to pursue thisinterest. 26. Also,the Appellant was notified and aware that there was a surveillance camerapointed towards her computer that her superior had access to, however, sheagreed to the installation of said camera. For this reason and all the onesmentioned above, the Appellant was fully aware that her conversation was notconducted in a private setting and was being monitored. Therefore, taking stills from her Facebookconversation did not breach her privacy because there was no reasonableexpectation of privacy in these circumstances.
27. Second,when the Appellant accepted the Respondent’s Facebook friend request sheallowed him access to all of her Facebook material, as well as gave him accessto communicate with her in various ways— including the ability to post on herwall. Once you accept someone on Facebook, they may post whatever they pleaseon your wall, unless you restrict your Facebook settings to disallow all orcertain of your friends from posting on your wall. The Appellant, as a socialmedia coordinator, surely knows the way in which these websites and theirsettings work, as well the uncertainty surrounding adding friends whoseidentity is unapparent. In accepting the Respondent’s friend request, theAppellant consented to all that that acceptance allowed a Facebook friend todo.
An act is not considered a violation of privacy if it was consented to asper section 2(2)(a) of the Privacy Act. Thustaking stills of her conversation, as well as posting the stills on her wallcannot be construed as violating the Appellant’s privacy since consent wasobtained both for access to her Facebook page and video surveillance of heroffice. Therefore, Madam Justice Cotchin did not err in determining that theRespondent’s overall use of the Appellant’s Facebook account was a not breachof the Appellant’s privacy (para 97).PrivacyAct, suprapara 8 s 2(2)(a) Claimof Right28. Alternatively,should the court find that the Respondent did in fact violate the Appellant’sprivacy, the Respondent submits that he had a claim of right to do so. Section1(1) of the Privacy Act states thatto be actionable, the violation of privacy must be done “wilfully and without a claim ofright”. PrivacyAct, suprapara 8 s 1(1) 29. As mentioned above, “without a claim ofright” has been described in Davis as”an honest belief in a state of facts which, if existed, would be a legaljustification or excuse”.
The Respondent had a legal justification inprotecting the security of his company by ensuring that the Appellant wascomplying with his work-related direction. This determination is established byMadamJustice Cotchin at paras 8-9of her judgment: “his actions the Respondent were within Mr. Rance’slawful interests as Ms. Martin’s direct supervisor to ensure compliance withlawful, work-related instructions”. Davis,supra para 9 30.
Notonly does the Respondent have the obligation to investigate non-compliance, healso has an obligation to protect the reputation of the company. When takingstills of the Appellant’s Facebook conversation and posting the photos on herwall – the Respondent was attempting to distance the company from the actionsand views of the Appellant, which did not reflect those of the Canutes. Byposting 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 Appellantand as such preserve their reputation. While the Respondent concedes that thismay have been an invasive way of accomplishing his goal, he did so to protectthe lawful interest of the company.
In summary, the Appellant’s non-complianceobliged the Respondent to investigate the situation by using surveillance ofthe Appellant’s Facebook activity and protecting the company’s reputation byposting the photos of her conversation on her profile. Willfulness31. Alternatively,should the court find that the Respondent did in fact violate the Appellant’sprivacy and did not have a claim of right, the Respondent submits that he didnot violate the Appellant’s privacy wilfully. Section 1(1) of the Privacy Act states that to beactionable, the violation of privacy must be done “wilfully and without a claim of right”. PrivacyAct, suprapara 8 s 1(1) 32. Hollinsworthdefines “wilfully” fromsection 1(2) of the Privacy Act as “an intention to do anact which they should have known would violate the privacy of anotherperson”; the Respondent doesnot therefore fulfill the definition of wilfully by his actions.
The aimof the Respondent was to investigate the disobedience of this employee — and hedid so by obtaining her consent from the very beginning of his investigation. He obtained her consent to placevideo surveillance facing her workspace, directed at her computer, as well asrequested her to accept him as a Facebook friend to access her profile. Thoughhis Facebook identity was ambiguous, she still accepted his request — he was not pretending to be someoneelse and as such her acceptance of his friend request was not misleading andwas at her own risk.
As mentioned above, accepting someone’s friend requestwithout the proper settingsto prohibit their use allows the person to post on their profile. Accepting afriend’s request thus accepts the possibility of having someone post on theindividual’s wall. If the Respondent had the intention to violate herprivacy, he would not have obtained her agreement for his actions and as such his actions do notsatisfy the wilful aspect of the breach of privacy tort as per section 1(1) of the Privacy Act.Hollinsworth,supra para 20 at para 29Privacy Act, suprapara 8 s 1(1)