On January 1, 2014, private sector employers with 50 or more employees in Ontario face the next round of compliance requirements under the Accessibility for Ontarians with a Disability Act, 2005 (“AODA”). 

Most organizations have already complied with the AODA Customer Service Regulation.  The AODA Integrated Accessibility Regulation  (“IAR”) sets out the followings requirements to be met in the new year by “Large Organizations”, defined under IAR to include private sector employers with 50 or more employees:

1.     Accessibility Policies:  Large Organizations must develop, implement and maintain policies governing how the organization achieves or will achieve accessibility through meeting its AODA requirements.  The policy must be in writing and include a statement of organizational commitment to meet the accessibility needs of persons with disabilities in a timely manner.  The policy must be publicly available, and provided in an accessible format upon request. 

2.     Multi-Year Accessibility Plan:  Large Organizations must establish, implement, maintain and document a multi-year accessibility plan, which outlines the organization’s strategy to prevent and remove barriers and meet its AODA requirements.  The plan must be reviewed and updated at least once every five years.  The company must post the accessibility plan on the company’s website, and if requested, provide the plan in an accessible format. 

3.     Self-Service Kiosk:  Large Organizations should review any “self-service kiosk” to determine whether the kiosk is accessible to a person with a disability.  A kiosk is defined to mean “an interactive electronic terminal, including a point-of-sale device, intended for public use that allows users to access one or more services or products or both.”  This will likely capture all self-service online job application and career websites, as well as any other “interactive electronic” parts of an organization’s website or online presence.  The IAS requires Large Organizations to have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks, and to consider how to ensure people with disabilities can use the kiosks independently and securely. 

4.     Accessible Websites and Web Content:  Large Organizations are required to make their internet websites and web content conform with Level A of the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0.  More details (for the company’s IT team) can be found at http://www.w3.org/WAI/intro/wcag.   The requirements apply to (a) websites and web content, including web-based applications, that an organization controls directly or through a contractual relationship that allows for modification of the product; and (b) to web content published on a website after January 1, 2012.  While only public sector organizations are specifically required to make their intranet accessible, large private employers should be aware of those internal sites that will be captured under the future employment standards accessibility requirements.  In many cases, it will be cost-effective to consider the wider range of website material.

The above is intended only to be a brief checklist and overview summary.  If your organization has any questions about complying with AODA or would like to start planning for the additional requirements that will continue to roll out over the next couple of years, do not hesitate to contact me to discuss further.

There is no doubt that we are in the midst of a massive shift in how we consume information and how we communicate with each other.  And there is also no doubt that those under 20 who grew up not knowing any different will have a very different kind of comfort around the online universe. 

Defining Online Privacy

Privacy is in the eyes of the beholder – for the very young, there is a tendency to continue to engage in frequent, open online interactions while asserting privacy rights around those online comments.  For many people over a certain age (50? 60? 30?), this is totally ridiculous.  You post it and it’s public.  Yet a typical Boomer would be appalled if someone listened into his or her conversation at a restaurant or at a public fountain. 

When so much of our personal life’s interactions are online, why not start to carve out the same sort of privacy we demand offline? The permanency of the written record only makes it more essential to think critically about what to do with all that information, not to just throw our hands up and give up.

The “public” status update may be online, but does that entitle the universe to act on that information to harm me, particularly when I’ve signaled my intention to maintain privacy over certain information through my privacy settings?  Whether or not it’s easy or possible to access and act on information, should we not set some re-defined, socially acceptable (and legal) parameters around online information?

Online Privacy in the Workplace

This is the core of the privacy dilemma that employers face.  In most US States, there is simply no expectation of privacy in the workplace, so employers have more flexibility around how to act upon their employee’s online information. 

In Canada and Europe, however, employees have varying degrees of a right to privacy on their workplace computer and in their online life generally.  Employers do not have any inherent right to read an employee’s Facebook page and discipline them for unpleasant or unpopular comments, subject to various legal tests such as the degree of economic harm on the employer’s business. 

It is legal in Canada, therefore, to be a total jackass online, and it is difficult to terminate an employee because of their online life, unless your employee is otherwise breaking the law or an enforceable workplace policy, bad-mouthing the employer’s business or exercising poor behavior that specifically intersects with the job’s reputational management concerns (e.g. a firefighter being sexist or a daycare worker writing hateful comments about children). 

Freedom of expression is, after all, a constitutional right in Canada.

Online Privacy in the Modern Economy

I anticipate that the generation growing up with the online world as simply an extension of their physical world – and not a public soapbox with different rules than in a restaurant or by the public fountain – will continue to carve out privacy rights in a way that makes sense to them and the online aspects of their daily, hourly lives.

Many proclaim that privacy is dead and we may as well either get over it or go off the grid.  The latter is not an option if you want to participate in the economy.  But giving up all privacy must surely bristle against human nature. 

The Desire for Privacy Won’t Die

My unscientific sense is that most of us inherently crave some amount of privacy.  Whether it’s to shield our imperfections from friends and family, to explore business or artistic ideas quietly, or to develop a potential romance without everyone staring and critiquing, the desire for privacy will not die anytime soon. 

We just have to figure out how to nurture and assert privacy parameters in the modern economy and online world.  And employers will have to continue to pay attention to this massive shift happening beyond the workplace to figure out how to handle expectations of privacy in the modern workforce.

I’d love to hear from you if your workplace has figured out the balance, or if you want to brainstorm about privacy policies that might help ease the way to the modern, online, e-information packed economy.

 

 

On Wednesday, the Canadian federal government introduced Bill C-13, a ‘new’ cyberbullying bill to address the increasingly harmful effects of intimate images going viral online.  The cyberbullying proposals are part of a wider omnibus bill that amends a few acts, including the Criminal Code and Evidence Act. 

Many of the cyberbulling provisions are in fact similar to provisions in Bill C-30 that was introduced in February 2012, but that was withdrawn due to the public opposition over the extent to which ISPs would have been required to hand over customer information.  For further commentary, here’s a good summary of critique on the bill by CBC journalist, Andre Myers.

Parliament’s summary of Bill C-13

This enactment amends the Criminal Code to provide, most notably, for

(a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;

(b) the power to make preservation demands and orders to compel the preservation of electronic evidence;

(c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;

(d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;

(e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and

(f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.

The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.

It also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.

Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act. 

When addressing the dispute at a union’s picketline, which interest trumps:  your individual right to privacy or a union’s right to freedom of expression?

This morning, the Supreme Court of Canada (“SCC”) released a seminal case that aggressively concludes that the union’s constitutional right will prevail over an individual’s privacy rights arising out of the Alberta Personal Information Protection Act (“PIPA”):  Information and Privacy Commissioner of Alberta, et al v United Food and Commercial Workers, Local 401.

The SCC struck down PIPA in its entirety, giving the Alberta legislature a year to amend the statute to comply with this ground-breaking decision.

The Facts on the Picketline:

  • During the UFCW’s 305-day lawful strike in front of an Alberta casino, both the employer and union recorded and took photos of individuals crossing the picketline;
  • The union posted signs in the area of the pickline that images of persons crossing the picketline might be placed on a website called www.casinoscabs.ca;
  • No recordings of the complainants were placed on the website referred to in the signs posted around the picketline.

The Privacy Complaint

Several individuals who crossed the picketline complained to the Alberta Information and Privacy Commissioner that their privacy had been violated.  One of the individuals who filed a complaint was the casino’s Vice-President, who complained that his image had been used in union materials, leaflets and a poster displayed at the picketline.

The individuals argued that the union contravened PIPA by collecting, using and disclosing their personal information (i.e. the recordings and photographs) without consent.

Section 2(b) of the Charter

The union responded to the complaints by asserting its constitutional right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter“).  The union argued that the purpose of collecting the information had core labour relations purposes, including informing union members and the public about the strike; dissuading people from crossing the picketline, and creating training material for union members.

Adjudication

Under Alberta law, the Privacy Commissioner does not have the authority to decide constitutional questions of law, and so the Adjudicator was prevented from deciding on whether the union’s Charter Right to freedom of expression trumped the individual’s privacy rights.

The Adjudicator did, however, very nicely lay the foundation for all three upper courts to find in favour of the union.  The Adjudicator concluded that the purposes for making the recordings and photos promoted the underlying purpose of the strike, namely to achieve labour relations’ resolutions in favour of the union.

The Adjudicator further concluded that the collection, use and disclosure of the information was for an “expressive purpose”, which feeds the upper courts helpful factual findings and conclusions, and draws upon the line of cases that support the union’s Charter rights.

The Appeals

The Adjudicator’s decision was judicially reviewed, argued at the Court of Appeal, and ultimately heard by the SCC.  All three upper courts, now having access to the Charter arguments, agreed that the union’s Charter rights prevailed over PIPA.

Here’s a summary of the SCC’s conclusions:

  • PIPA’s exemptions (such as a journalistic purpose or a possible investigation or legal proceeding) that could have permitted the collection, use and disclosure of information without consent did not apply to the union’s activities in this case.  The SCC found that since no exemption applied to the union’s activities, PIPA’s application was too broad, restricted the union’s right to freedom of expression and thus violated the union’s Charter rights.
  • Once the Charter violation was found, the SCC then analyzed whether the restriction on the union’s right to freedom of expression is justified in a free and democratic society (i.e. the section 1 Charter analysis).  The SCC concluded that while PIPA’s provisions are rationally connected to its objectives to protect privacy interests, “its broad limitations on freedom of expression are not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote.” (paragraph 18 of the decision)
  • PIPA’s limitations on the collection, use and disclosure of personal information without consent did not give sufficient regard to the nature of personal information (these were images of people in public), purpose (to further the Union’s Charter right to freedom of association under section 2(d)), or context (lawful picketline).
  • Drawing on a long line of cases, the SCC reiterated that freedom of expression in the context of a lawful labour dispute is an “essential” component of labour relations.
  • The SCC concluded:

[37] PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view, this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline.

Status of PIPA

Upon the request of the Alberta Information and Privacy Commissioner and the Attorney General, the SCC did not cherry pick which provisions of PIPA violate the Charter.  Rather, the SCC struck down PIPA in its entirety, declaring PIPA to be invalid as of 12 months from today.  This gives the Alberta legislature time to revise and correct the legislation.

What about outside of Alberta?

While this case is huge news for privacy law in Alberta, it is also a seminal case for the rest of Canada.  This case clearly and unambiguously concludes that any Canadian union’s Charter right to freedom of expression on a pickline will trump individual privacy rights.  Although privacy rights are deemed quasi-constitutional throughout the case law, there is no “quasi” to the constitutional rights of the Charter.

Employers and individuals crossing picketlines are not protected by privacy laws, and must govern themselves accordingly.  Whether you call individuals crossing a picketline a “scab” or “replacement worker”, the union’s Charter rights will permit images of people at the picketline to be taken and posted, provided the purpose is connected to labour relations.

 

Last week, I conducted a workshop on implementing a successful “Bring Your Own Device” (BYOD) program at the Canadian Institute’s Privacy Law & Compliance Conference.  I met a wonderful group of privacy experts who had plenty to contribute to the discussion.

We talked about the benefits, risks and costs of permitting employees to use their personal device to perform work-related tasks, which typically includes accessing the company’s network.  Over half the group was in the public sector and regularly handled very sensitive, confidential personal information.

The private sector attendees in the group had an equally strong concern about protecting highly sensitive and confidential business information.  At the end of the day, most organizations, regardless of how open they may or may not be, require a certain level of security around their data, intellectual property and personal information.

So how to implement a successful BYOD program?

 

 

Continue Reading Implementing a Successful BYOD Program

Who owns your LinkedIn connections?  I’ve blogged about the ownership of social media content a few times already (here, here, and here) and I continue to believe that the real battle will be over connections made in the course of business. 

Are these connections your extended network that you brought into the employment relationship that you can take with you when you leave?  Or are they the employer’s customer list in which the employer has a proprietary interest?

Traditionally, employers owned the customer list, and most employers will likely continue to believe that for some time to come.  But increasingly, we are seeing individuals demand ownership over their own online social network.

The Canadian Eagle Case

This is the core of the US cases, Eagle (LinkedIn) and PhoneDog Noah (Twitter).  There is also some Ontario law that pushes forward this concept that online social media contacts may not necessarily belong exclusively to the employer.  For example, in the summary judgment case of Eagle Professional Resources Inc. v. MacMullin, 2013 ONSC 2501(Ont. S.C.), confirmed on appeal yesterday, the court held that three employees did not breach the non-solicitation provision of their employment contract when they allegedly contacted their former employer’s customers. 

Can “Publicly Available” Information be Confidential?

The employees argued that they did not actively approach any of their former employer’s customers, but to the extent that they did continue to work in their field, they relied on “publicly available” information.

It is established law (and common sense) that a company cannot assert confidentiality over otherwise publicly available information.  In the Canadian Eagle case, the employer argued the customer information was taken from an internal database.  The three defendant employees argued the customer information was publicly available online from social media sites such as LinkedIn:

27 In this case, there is no evidence from Eagle, other than a very bald assertion, that it had any proprietary interest entitled to protection. According to the Defendants, the information that they learned at Eagle was all publicly available and obtained from such sources as social media websites.

As a summary judgment case, the decision is brief and does not go into detail about the nature of the social media sites, who owned them, whether they were the companies’ or the employees’ sites, or whether the online public sources were open to anyone in or beyond the company.  All we know is that they were “publicly available”, essentially eliminating the employer’s proprietary interest over such content.

There are, of course, various intellectual property laws available to prevent people from stealing content or scraping from another person’s or company’s website.  What remains less clear, however, is the extent to which an employer can ascribe a confidential value to something that is publicly available. 

But the Telephone Book is not Confidential

One colleague of mine has commented that the concept is not new if you think about the traditional telephone book.  The difference, however, is that the value of the list is derived from WHO is on that confidential list, not what is their telephone number or email address.  In other words, who cares who lives in Toronto?  As an employer, I would want to know which specific individuals in Toronto will want my business, and that is the list I would want to protect and prevent employees from taking with them and competing against me.

What to do?

The LinkedIn account is a contract between the individual and LinkedIn, but employers who anticipate a lot of active LinkedIn participation on behalf of the company should consider some sort of additional agreement between the employer and the employee.  This agreement could set out the parameters of use, who speaks on behalf of the company, and most importantly – who owns the content, some of which is produced on company time and on company equipment.

The law is quickly evolving on social media content, but there is no doubt that many of the headaches could be avoided with strong contracts upfront, entered into when the parties are still friends.

 

Yesterday, the Ontario Court of Appeal tripled the fine awarded against a construction company that failed to ensure the safety of its workers:  R v Metron Construction.

Facts

In the late afternoon of December 24, 2009, five workers who were restoring the concrete balconies of a high rise in Toronto fell from a fourteenth floor swing stage platform. Four of the five workers died, the fifth worker who survived suffered serious permanent injuries. The sixth worker – the only one who was properly attached to a safety line – did not fall and survived uninjured.

Details of the original judgment are set out in the July 2012 trial judgment of R v Metron Construction Corporation.

Criminal Conviction – Trial Judge

The company was the first in Ontario to be charged and convicted under the new Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to that worker. See sections 217.1, 219 and 22.1(b) of the Criminal Code for the specific provisions upon which the crown relied.

The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which was over 3 times the net earnings of the business in its last profitable year. The trial judge concluded that the penalty was “the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”

Court of Appeal Triples the Fine

Yesterday, the Court of Appeal tripled the penalty, fining the company $750,000. The Crown had sought a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act. The Court agreed with the merits of that argument:

[87] Section 718.1 of the Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death. The OHSA cases that attracted fines of between $115,000 and $450,000 and that were relied upon by the sentencing judge are of limited assistance.

The Court also concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence:

[115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent. Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit.

The Court of Appeal has sent a very clear message to employers: worker safety is paramount, and companies will pay dearly under the Criminal Code if found liable for worker injury or death.

 

Does racism necessarily lead to a poisoned workplace?

At the end of last month, the Ontario Court of Appeal concluded in General Motors of Canada Limited v Yohann Johnson that while the former employee, Johnson, “genuinely believed that he had been the victim of racism in his workplace” and that his “perception of events unfortunately led to stress and mental anguish”, the evidence did not support Johnson’s claim of a work environment poisoned by racism or constructive dismissal.

In a fairly rare move, the Court of Appeal overturned the trial decision because it disagreed with the trial judge’s factual conclusions, rather than any significant concern with the application of law.

Facts

In that case, Johnson, a black man, was a production supervisor in the body shop at GM’s Oshawa assembly plant. Among his various duties, he was responsible for training group leaders in the body shop on a new system of policies and guidelines.

One employee named Markov refused to train with Johnson. Based on a number of factors and statements by co-workers, Johnson claimed that Markov refused to train with Johnson because of race. The Court of Appeal accepted the evidence that Markov refused to train because of an insensitive remark Johnson had allegedly made to Markov a few years earlier.

The company conducted three different investigations, and each time had concluded that Markov’s refusal to train with Johnson was not motivated by race. Markov, in fact, had agreed to take the training with another supervisor who was of colour.

What remained a significant challenge at trial was that Markov had unfortunately died before trial, so his credibility and his version of events could not be admitted or tested.

Medical Leave

Johnson eventually took a medical leave, asserting disability arising from discriminatory treatment due to racism in his workplace. He was absent from work for the next two years, after which he met with the company’s doctor, who concluded that Johnson was fit to return to work.

The company offered Johnson two different positions, both of which were approximately a kilometre away from the assembly plant body shop, offered to adjust Johnson’s shifts and possibly his supervision. Johnson declined the offers, maintaining he was disabled from working in any GM plant, but provided no medical information to support the claim. Johnson remained concerned that he would run into certain employees, including Markov.

Two months later, the company wrote to Johnson, who had still not returned to work, to confirm the offered employment opportunities, and concluded that in the absence of any medical support for the continued absence, Johnson was resigning from the company.

Johnson’s Litigation

Johnson sued for damages for constructive dismissal and a poisoned workplace based on racism. The Trial Judge agreed with Johnson and awarded him various damages.

The Court of Appeal overturned the decision, concluding among other things that Johnson failed to establish systemic or institutional racist behaviour:

“I agree with GM’s submission that a single incident of this kind, with a single employee, over the course of an eight year working relationship cannot objectively ground a finding of a work environment poisoned by racism.” (paragraph 71)

The Court of Appeal made several conclusions in support of the company, including the following:

  • there was no evidentiary basis to support that Markov was racially motivated in his refusal to train with Johnson, or that Johnson was required to return to a poisoned work environment when the company offered him two different positions;
  • Johnson did not have the right to dictate where he would work or the employment role he would assume on his return to work;
  • an objective standard governs the determination whether a workplace is poisoned, by reason of racism or harassment, not just the subjective perception of the plaintiff; and
  • the company was “not obliged to immunize Johnson from any future contact with Markov or other body shop employees”, and the mere possibility of contact with the employees does not alone establish that such exposure would result in future discriminatory treatment of Johnson.

Take-Away for Employers

The onus of establishing a poisoned workplace is on the employee making the claim. It is not an easy hurdle to meet, and must be based in solid, objective evidence.

The Court of Appeal was sympathetic to Johnson’s genuine belief that he had been the victim of racism in his workplace and that he had suffered personal anguish as a result, but it could not conclude that Johnson’s belief was sufficiently supported by objective evidence.

The critical step to all workplace human rights complaints is to ensure that all complaints are taken seriously, and that a well-trained person conducts an objective, detailed investigation and thoroughly explore the issues, interview witnesses and fully document the entire process.

Because at the end of the day, it doesn’t really matter what we all perceive to be the facts – we have to prove them to obtain a legal remedy.

 

A couple of readers have asked to what extent US based social media cases will apply in Canada.  We don’t yet have a large body of social media cases in Canada (other than run of the mill termination cases involving social media), so there tends to be a lot of discussion up here about US based social media cases.  Given that the US population is 10x larger than Canada’s population, it makes sense that there is simply a much larger volume of American caselaw to work with. 

For novel issues in general, Canadian courts will often take into consideration cases from other countries in the Commonwealth and the US. 

So for the world of social media, where many of the issues remain novel and unlitigated, US cases may be influential on our own adjudicators looking for guidance and analysis.  While US cases are not a binding legal precedent, they may provide an important backdrop to a Canadian decision.

A good example is the Eagle v Morgan et al. case (for a commentary on the piece, see my recent blog post here).  In that case, one of the three successful claims was for a breach of the former employee’s privacy tort of intrusion upon seclusion by appropriation of identity.  However, while Dr. Eagle won certain of her legal claims, she was unable to prove any actual damages and therefore was awarded $0.

Dr. Eagle may have had a better result in Canada.  Last year, the US tort of intrusion upon seclusion was introduced into our jurisprudence through the Jones v Tsige (2012 ONCA 32) case (discussion in a past blog post here).  The court adopted the US tort, but with a critical difference:  there is no requirement to prove harm to a recognized economic interest in Canada to be awarded damages. 

Paragraph 70 and 71 of the Jones v Tsige case set out the elements of the tort as follows:

c) Elements

[70]         I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71]         The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. [emphasis added]

Thus, while Dr. Eagle failed to obtain any damage award in Pennsylvania, in Ontario at the least, she may have won her claim and received an award notwithstanding her failure to establish harm to a recognized economic interest. 

Damages for the Ontario tort are capped at $20,000, so it remains to be seen whether that relatively low cap will discourage people from spending big legal fees for a fairly low win.  The tort will no doubt be coupled with more fruitful claims in most situations.

Take-Aways

There are two key concepts to take away from the relationship between the Eagle and Jones cases:

1.     Canada is not a US State, and indeed a different country with different laws.  Yes, really.  Check on Wikipedia if you don’t believe me: http://en.wikipedia.org/wiki/Canada (English) or http://fr.wikipedia.org/wiki/Canada (French).   

2.     US cases do influence our laws, although not as a binding legal precedent, and always filtered through our Canadian legal lens that tends to result in more employee-friendly results.

 

Who owns your LinkedIn content?  As described in my last blog post, the battle over who owns social media content, and particularly LinkedIn connections and any other social media “customer” list, has yet to come.  LinkedIn content will likely be where employers and companies may have a financial motivation to fight for the content, depending on how the social media content was used in the course of business.

The Eagle v Morgan et al decision came out in March, and is one of the few cases to date that provides some insight as to where the courts may go on social media content.  This is a Pennsylvania case, but some of the underlying legal concepts may be applicable in Canada, albeit not as a direct precedent. 

For a full review of the facts, see Sara Hutchins Jodka’s summary on the Employer Law Report blog.  For some good analysis about the case, Daniel Schwartz has discussed the case a couple of times in his blog, Connecticut Employment Law Blog.

The Facts

As with most law, the case turned on its particular facts:

  • Dr. Linda Eagle co-founded her banking education company and she was a key sales generator and face of the company;
  • She provided her staff with her LinkedIn password, and directed them to maintain her LinkedIn account, including updating content, responding to messages, and expanding connections;
  • The company heavily used senior executive LinkedIn accounts to expand the company’s network and to generate business;
  • Dr. Eagle and her co-founders sold the company in October 2010, but stayed on as employees until they were terminated by the new owners the following June 2011; and
  • Immediately upon termination, the company changed Dr. Eagle’s LinkedIn password, replaced her photo with that of her replacement, and changed most but not all content.

Needless to say, Dr. Eagle was ticked.  She gained access to her account within a number of weeks, but only by going through LinkedIn directly.  

Dr. Eagle sued her past employer for a long list of claims, winning on the following:

  1. unauthorized use of name
  2. intrusion upon seclusion by appropriation of identity
  3. tort of misappropriation of publicity.

For most of us mortals, we’re simply not important enough to have any sort of celebrity name that can be misappropriated for any monetary value.  In this case, however, Dr. Eagle remains a leader in her field and organizations hire her for her unique skills.

The Decision

The bittersweet twist in this case is that while Dr. Eagle successfully proved her first three claims, the court held that she had not established any monetary damages, and was therefore awarded $0.  Although she did prove her point that the company misbehaved very badly, it is a rather hallow victory.

Take-Aways

So who owns social media content?  The Eagle case suggests that the owner of the LinkedIn profile does, even when that owner expressly directs the company’s staff to maintain and develop some of the content.

The company had unsuccessfully counter-sued Dr. Eagle, arguing that her LinkedIn connections belonged to the company.  Similar to the types of arguments put forth in Phonedog, those connections are already in the public domain, making the proprietary claim a bit of a stretch.

This is why social media connections are not simply a Rolodex to which the employer can claim ownership.  Social media connections/followers/friends are not particularly private, confidential or even unique.  It’s a collection of relationships, which may or may not be directly related to the employer, even if the employer’s staff has developed many of those connections.

We’ve now seen a move in the law towards recognizing who may own the content, and in the absence of crystal clear employer policies, it will likely be the employee.

What remains to be seen is how to commodify content and relationships.  Who cares who owns the content and relationships if they are legally worth $0.  Most of us, however, have a gut feeling the value is a good deal more than $0.  Social media isn’t just social – it’s business too.