Privacy and Confidentiality Surrounding Employee Work Blogs
The prevalence of e-mail in our lives and particularly in the workplace has given rise to numerous employment law issues. Many if not most recent dismissal cases turn on evidence from e-mails. The content of e-mails has become the subject matter of many dismissal-for-cause cases. E-mail has largely taken over as the predominant form of business communication. One of the reasons e-mail has become such an important part of employment law is because it is relatively permanent in that email is not nearly as easy to destroy or delete as paper documents. Another important feature is that it is tremendously easy to copy and distribute. One e-mail sent to one person can quickly be distributed to thousands of people.
This paper isn't about e-mail.
This paper is based on a more recent internet-based phenomenon that shares many characteristics of e-mail but is used more as a form of expression than communication. This paper examines the employment and labour law ramifications of blogging including striking a balance between freedom of expression and corporate privacy, maintaining confidentiality and whistleblower issues.
What is a Blog?
Blogs are essentially personal online commentaries. They provide any person with access to the internet an easy way to publish their thoughts, observations, and opinions. Blogs are similar to company Intranet sites. Wikipedia defines an Intranet site:
An intranet is a private computer network that uses Internet protocols, network connectivity, and possibly the public telecommunication system to securely share part of an organization's information or operations with its employees. Sometimes the term refers only to the most visible service, the internal website. The same concepts and technologies of the Internet such as clients and servers running on the Internet protocol suite are used to build an intranet. HTTP and other Internet protocols are commonly used as well, especially FTP and e-mail. There is often an attempt to use Internet technologies to provide new interfaces with corporate 'legacy' data and information systems.
Briefly, an intranet can be understood as "a private version of the Internet," or as a version of the internet confined to an organization.
The primary difference is that Intranet sites are typically constructed by a business for the purpose of disseminating business information and are private in that the business has included means to limit access and often the ability to copy information from the site. It was the misuse of an Intranet site that led to allegations of corporate espionage in the case of Air Canada v. WestJet Airlines Ltd., [2005] 5512 S.C.J.
The issue in the WestJet case was described as:
The background facts can be stated briefly. The plaintiffs allege that, over a period of one year from March 2003 to March 2004, WestJet accessed a website, that Air Canada operated for the benefit of its employees, and retrieved from it confidential information of the plaintiffs regarding passenger loads and route information. It is alleged that WestJet then used that confidential information to alter its business plans to more effectively compete with the plaintiffs and to get a head start on establishing new routes and other business decisions without facing the same risks with which it otherwise would have had to contend.
Ultimately, this case was settled and the Court did not address the issue of confidentiality in a substantive way. In approaching the issue of providing guidance as to what employees can and cannot "publish" in a blog or otherwise, a reasonable starting place is a review of what types of information our legal system is prepared to protect under the rubric of confidentiality.
Employee Blogging and Confidentiality
The concept of confidentiality is notoriously slippery. Attempts have been made to circumscribe it but there likely will never be a definitive description. One area of law where confidentiality issues arise is breach of confidence cases. The WestJet case would have been interesting because it may have had to deal with the issue of the duty of care between business competitors regarding each other's confidential information.
The two leading cases in Canada that have dealt with claims for breach of confidence are LAC Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 and Cadbury Schweppes Inc. v. FBI Foods Ltd., 167 D.L.R. (4th) 577 (S.C.C.).
In LAC Minerals, the information found to be confidential was geological information including Corona's geologist's opinions and theories. LAC resisted this characterization on the basis that much of the geological information had been disclosed by Corona to potential investors to attract investment. Mr. Justice La Forest, for the majority, looked to two English cases for guidance in characterizing this information. He set out the following passage from Saltman Engineering Co. v. Campbell Engineering Co. (1948), 65 R.P.C. 203 (C.A.) Leave to appeal to House of Lords refused):
I think that I shall not be stating the principle wrongly if I say this with regard to the use of confidential information. The information, to be confidential, must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker upon materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process. LAC Minerals, supra at 610.
He also relied on the following passage from Seager & Copydex Ltd., [1967] 1W.L.R. 923 (C.A.):
When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it: or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it.
The Seager& Copydex Ltd. case went to the House of Lords (Seager v. Copydex Ltd. (No. 2), [1969] 2 All E.R. 718). The House of Lords decision produced a passage that has been relied on to "rank" confidential information in order of importance. This passage was reproduced and relied on in the unanimous Supreme Court of Canada decision in Cadbury Schweppes, supra:
The difficulty is to assess the value of the information taken by the defendant company ... The value of the confidential information depends on the nature of it. [1] If there was nothing very special about it, that is, if it involved no particular inventive step but was the sort of information which could be obtained by employing any competent consultant, then the value of it was the fee which a consultant would charge for it; because in that case the defendant company, by taking the information, would only have saved themselves the time and trouble of employing a consultant. But, on the other hand, [2] if the information was something special, as, for instance, if it involved an inventive step or something so unusual that it could not be obtained by just going to a consultant, then the value of it is much higher. It is not merely a consultant's fee, but the price which a willing buyer--desirous of obtaining it-would pay for it. It is the value as between a willing seller and a willing buyer. [3] ... if the plaintiff is right in saying that the confidential information was very special indeed, then it may well be right for the value to be assessed on the footing that, in the usual way, it would be remunerated by a royalty. The court, of course, cannot give a royalty by way of damages; but it could give an equivalent by a calculation based on a capitalization of a royalty. Thus - it could arrive at a lump sum. Once a lump sum is assessed and paid, then the confidential information would belong to the defendant company in the same way as if they had bought and paid for it by an agreement of sale. [Emphasis added.] Cadbury Schweppes, supra at 606
The "confidential" subject matter in the Cadbury Schweppes case was the formulation, but not the essential spice mixture, of a clamato drink. The Courts, including the Supreme Court of Canada applied the ranking system from Seager v. Copydex Ltd. (No. 2) and determined that the "secret" formulation was "nothing very special." Nonetheless, the Court awarded damages based on the actual loss to the plaintiff from competition from the defendant for the period of time that it would have taken the defendant to develop its own recipe without the plaintiff's "nothing very special" information.
The characterization of confidential information was again addressed by the English Court of Appeal in Faccenda Chicken Ltd. v. Fowler, [1985] 1All E.R. 724, aff'd [1986] 1 All E.R. 617 (C.A.). In the Faccenda Chicken case, the lower Court set out the following categories of confidential information:
First there is information which, because of its trivial character or its easy accessibility from public sources of information, cannot be regarded by reasonable persons or by the law as confidential at all. The servant is at liberty to impart it during his service or afterwards to anyone he pleases even his master's competitor.
Second, there is information which the servant must treat as confidential, either because he is expressly told it is confidential, or because from its character it obviously is so, but which once learned necessarily remains in the servant's head and becomes part of his own skill and knowledge applied in the course of his master's business. So long as the employment continues, he cannot otherwise use or disclose such information without infidelity and therefore breach of contract. But when his is no longer is [sic] the same service, the law allows him to use his full skill and knowledge for his own benefit in competition with his former master . . .
Third, however, there are ... specific trade secrets so confidential that, even though they may necessarily have been learned by heart and even though the servant may have left the service, they cannot lawfully be used for anyone's benefit but the master's. Faccenda Chicken Ltd. v. Fowler, [1985] 1All E.R. 724 at 731
The Court of Appeal added the following qualification on an employer's ability to protect information in the second category:
We must therefore express our respectful disagreement with the passage in Goulding J's judgment where he suggested that an employer can protect the use of information in his second category, even though it does not include either a trade secret or its equivalent by means of a restrictive covenant (see [1985] 1All ER 724 at 731.) As Lord Parker made clear in Herbert Morris Ltd. v. Saxelby, [1916] 1A.C. 688 at 708, [1916-17] All ER Rep 305 at 317, in a passage to which counsel for Faccenda Chicken Ltd. drew our attention, a restrictive covenant will not be enforced unless the protection sought is reasonably necessary to protect a trade secret or to prevent some personal influence over customers being abused in order to entice them away.
Faccenda Chicken Ltd. v. Fowler, [1986] 1All E.R. 617 (C.A.) at 626
The Faccenda Chicken approach to confidential information has been adopted by the BC Supreme Court in Future Shop Ltd. v. Northwest-Atlantic (B.C.) Broker Inc., [2000] B.C.J. No. 2659 and Napier Environmental Technologies Inc. v. Vitomir et al., [2002] B.C.J. No. 1559.
In the Napier decision, the Court struck out pleadings alleging misuse of confidential information on the basis that the pleadings did not adequately describe the information the plaintiffs alleged to be confidential.
These decisions provide guidance in determining the type of information a Court will recognize as confidential, which in turn will assist in developing a policy to address what employees should consider confidential. These cases are also provided to highlight the difficulty inherent in attempting to clearly define the category of confidential information that an employer may legitimately seek to protect from disclosure. A necessary element in creating and promulgating an anti-blogging or corporate confidentiality policy is conveying clearly and concisely the type of information the employer considers confidential.
Privacy and Employment Law
Businesses will also want to limit disclosure of information that does not fall within the general category of confidential business information. Confidential business information can generally be thought of as information that would give a competitor a business advantage. Customer lists, financial forecasts, business plans, production processes and similar information would fall into his category.
Businesses are made up of people. Those people often say and do embarrassing things. The ability of a blog to quickly and irrevocably broadcast these human interactions to a large audience outside the business can create embarrassment for people within the organization who may feel legitimately betrayed by such publication.
The news stories of people that have been fired or wrongfully dimissed as a result of information posted to blogs are typically about criticism of the employer as an organization or of individuals within the organization. This type of communication is typically understood as free speech. However, in the private sector, there is nothing preventing an employer from placing limits on free speech. The question is where and how to draw the line. If an employer is seen as unduly stifling free speech, it may dissuade people from working there or otherwise reflect poorly on the corporation. Before turning to some of the recommendations in formulating a fair and effective blogging or communications policy, a review of free speech considerations involving public sector employees may assist in understanding some of the public policy concern in the area.
The Public Sector
Public sector employees have largely waged the battle over employee free speech. This is because employer (government) limits on public sector employee's rights to express themselves are subject to Charter scrutiny. A leading case is Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455. Fraser was not a Charter case.
Mr. Fraser had been employed by Taxation Branch of Revenue Canada for 10 years. He was a business audit supervisor. He came to be publicly outspoken against two Federal policies: metric conversion and, ironically, the Charter of Rights and Freedoms. He spoke out against these policies and voiced his opinions on television and in local newspapers. He was warned to stop his public criticism; he was twice suspended and finally dismissed when he refused to curb his activities.
Mr. Fraser grieved his discipline to the Public Service Staff Relations Board where an arbitrator held that his dismissal was justified. The Federal Court of Appeal dismissed his appeal.
The Supreme Court of Canada affirmed the arbitrator's decision and that of the Federal Court of Appeal. The substantive ruling on the issue of a public servant's right to criticize the government was analyzed as finding a balance between competing socially valuable interests:
In my opinion, the Adjudicator was correct in identifying the applicable principles and in applying them to the circumstances of the case. The act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be, to use Mr. Fraser's apt phrase, 'silent members of society.' I say this for three reasons.
First, our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted, indeed encouraged, to participate in that discussion.
Secondly, account must be taken of the growth in recent decades of the public sector-federal, provincial, municipal-as an employer. A blanket prohibition against all public discussion of all public issues by all public servants would, quite simply, deny fundamental democratic rights to far too many people.
Thirdly, common sense comes into play here. An absolute rule prohibiting all public participation and discussion by all public servants would prohibit activities which no sensible person in a democratic society would want to prohibit. Can anyone seriously contend that a municipal bus driver should not be able to attend a town council meeting to protest against a zoning decision having an impact on her residential street? Should not a provincial clerk be able to stand in a crowd on a Sunday afternoon and protest a provincial government decision cutting off funding for a day care centre or a shelter for single mothers? And surely a federal commissionaire could speak out at a Legion meeting to protest against a perceived lack of federal support for war veterans. These examples, and many others could be advanced, demonstrate that an absolute prohibition against public servants criticizing government policies would not be sensible.
On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing [at 468] value is a powerful one. Thus, for example, we have laws dealing with libel and slander, sedition and blasphemy. We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.
A similar type of balancing is required in the present appeal. Public servants have some freedom to criticize the Government. But it is not an absolute freedom. To take but one example, whereas it is obvious that it would not be 'just cause' for a provincial Government to dismiss a provincial clerk who stood in a crowd on a Sunday afternoon to protest provincial day care policies, it is equally obvious that the same Government would have 'just cause' to dismiss the Deputy Minister of Social Services who spoke vigorously against the same policies at the same rally. Fraser, supra at 466-68
Mr. Fraser's conduct and his appeal were distilled into a list of circumstances where criticism would be allowed:
As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government. Fraser, supra at 470
It would have been ironic if Mr. Fraser had to rely on the Charter to protect his right to object to the Charter. However, his dismissal preceded the Charter. The analysis from Fraser has been incorporated into Charter jurisprudence. The Fraser analysis which involves balancing between the freedom of expression rights of a public service employee and the duty of loyalty to his employer (government) was considered in the context of the Charter in Haydon v. Canada, [2000] F.C.J. No. 1368. In that decision, Madam Justice Tremblay-Lamer held that the common law duty of loyalty, as enunciated in Fraser, supra, constituted a reasonable limit under s. 1of the Charter. The Federal Court of Appeal affirmed this proposition in Read v. Canada (Attorney General), [2006] F.C.J. No. 1257.
The right to publicly criticize ones employer, where that employer is the government, becomes a balancing test guided by the analysis in Fraser. Where the employer is not the government, many of the public policy argument supporting freedom of expression disappear. A private sector employer, not subject to the Charter, is free to impose more restrictions on an employee's free speech.
Unionized Blogging
Before moving too far from the public service cases, a review of the BC Court of Appeal decision in British Columbia Public School Employers' Association v. British Columbia Teachers' Federation, [2005] B.C.J. No. 1719 is appropriate. This turns out to be a hybrid decision as it ultimately turns on the application of the Charter but it does not turn on the Fraser balance between employee loyalty and freedom of expression.
The issue in this case was attempts by School Boards to limit teachers from using school resources (parent-teacher interviews, classroom bulletin boards) to express opinions about education funding that were critical of the Provincial Government.
The School Boards sought to impose these limits through "directives." The Teacher's Federation grieved the directives. The Arbitrator ruled that the Charter applied to the School Board directives. He further ruled that the Fraser analysis was not appropriate:
The common law duty of fidelity owed by a teacher, and arising from his or her employment, is a duty owed to the School Board employing that teacher. A teacher does not owe a duty of fidelity arising from employment to the provincial government. To the extent the expressive content of the materials intended by the teachers to be posted or otherwise communicated was aimed at the provincial government, the duty of loyalty or fidelity has no application. British Columbia Public School Employers' Association, supra at para. 17
The Court of Appeal affirmed the reasons of the arbitrator after a thorough analysis of the applicability of the saving provision of the Charter. Ultimately, the Court found that the absolute ban on certain communications was unreasonable:
Therefore, in my opinion, the absolute ban of discussion on school property during school hours did not minimally impair teachers' rights. Few places would be more appropriate for a discussion of the need for resources for public schools than a parent-teacher interview dedicated to one child's education. The Supreme Court noted in Pepsi, '[f]ree expression in the labour context benefits not only individual workers and unions, but also society as a whole' (at para. 35). The same holds true for teachers. Their political expression benefits society as a whole even where the concerns arise out of a labour relations dispute. British Columbia Public School Employers' Association, supra at para. 68
This is a hybrid decision because it addresses governmental action and as such incorporates Charter analysis and relief but at the same time it addresses the employment relationship in a more traditional labour context.
The issue of discipline arising from blogging activity in the traditional labour relations context has been considered quite recently. Chatham-Kent (Municipality) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada}, Local 127 (Clarke Grievance}, [2007] O.L.A.A. No. 135 are a classic example of the employment problems that can arise from blogging.
The facts are that the grievor, an 8-year employee in a senior citizen care home, started a blog to express her experiences and opinions of her job. The following quote from the decision summarizes the contents of the blog:
The evidence discloses that towards the end of March 2006 Ms. Clarke set up a website. The parties agree that her blog (her writings and photographs on the pages on this website) were accessible to be read by any member of the public with internet access until the time Ms. Clarke closed it down around July 20, 2006 and shortly after being interviewed about it by management. Ms. Clarke made 16 written entries, of which 14 were made in April and May, and posted 7 pictures. Co-workers were in five of these pictures and a resident seated in a wheelchair was in one picture. Her written entries generally described what was taking place in her life and what was happening in her work place. She expressed her displeasure with some of the decisions being made by management, including those made by the Supervisor of Resident Care and the Manager of Resident Care, whom she identified by first name and initials, respectively, on April 11th and June 13th. She wrote about how lazy a certain named co-worker was, and how her partner on a specified upcoming shift dawdled and worked so slowly. On April 22nd she referenced her shifts as being 'a bitch.' In a blog entry of May 3rd Ms. Clarke referred to her place of employment as 'The View,' a name that Ms. Cuncic testified is the one by which this newly built residence is generally known, and she stated in her blog that the View is a Hole. In this same entry she said she was 'friggin pissed off,' alleged she was 'blackmailed by management,' referred to management in general as 'stupid fucking assholes,' and generally spoke about being 'underpaid for all the overwork' she did. In an entry dated May 27th Ms. Clarke made reference to her 'whining and bitching about the 'View." Throughout, the ill-written blog is blunt and laced with coarse language, and could generally be described as bitchy in style with an attempt at humour.
The employer had a confidentiality policy, which the grievor had signed--on two occasions:
Ms. Cuncic referred to the Confidentiality Agreement signed by Ms. Clarke in September 2004 (ex. 9) and again in February 2006 (ex. 10) by which she agreed to respect the privacy of residents, their families and other employees, and to treat the Home's clinical, administrative, and financial information concerning residents, their families, employees, and the Home as confidential information. In signing this document Ms. Clarke acknowledged her understanding that she would be subject to disciplinary action that may include termination of employment if she breached any provisions of the Confidentiality Agreement.
The grievor alleged that she was unaware when she set up her blog that it was accessible to the public. The arbitrator did not accept this assertion in part based on the screen shots of the set-up interface for the blog space provider which clearly stated that the default settings would allow public access to the blog.
The union alleged that the employer could not rely on the confidentiality policy as it had to meet the test set out in Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. Ltd. (1965}, 16 L.A.C. 73 (Robinson):
A rule unilaterally introduced by the company, and not subsequently agreed to by the Union, must satisfy the following requisites:
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it was introduced.
The arbitrator held that the employer's confidentiality policy met this test. In the result, the grievor's dismissal was upheld. The arbitrator's reasons were:
The evidence makes clear that Ms. Clarke breached the confidentiality agreement. She did this by disclosing personal information of residents on a blog that she created and which could be accessed by the general public. The evidence discloses that the blog was created to enable the grievor to communicate with three other women who had previously worked together and who would no longer be doing so after the move into the new building. However, in creating her blog the grievor made two major errors. The first was in establishing a public website, and not the private one she had evidently wished to create. The second was that she breached the confidentiality agreement with the information about residents she placed on her blog, and was insubordinate in the way she discussed certain matters about the management and operation of the Home.
Additionally, the whole tone, manner, and the tasteless language she used to graphically discuss aspects of her daily work activities at the Home, address the perceived strenuousness and unjustness of her work day, and berate the work ethic of some of her co-workers, was inappropriate and conduct unbefitting a Personal Care Giver. She has provided the employer with cause for discipline.
This case effectively illustrates many of the themes canvassed in this paper and underscores the importance of creating a reasonable, respectful communications policy that can incorporate both e-mail and blogging.
Confidentiality Policies
A sensible starting point in creating a policy that could be effective for both unionized and non-unionized employees is the KVP test and in particular:
1. It should be reasonable;
2. It should be clear and unequivocal;
3. It must be brought to the attention of the employees;
4. It should indicate the consequences of non-compliance;
5. It should be consistently enforced.
Creating a policy that is clear and unequivocal is likely the most difficult task although the concept of reasonableness is also a difficult challenge. On both of these issues we can look to the jurisprudence from the public sector freedom of expression cases and the common law confidentiality cases for guidance.
Regarding confidentiality, one strategy is to put security procedures in place so that employees will know, or should know, what information is considered confidential. Most email programs allow senders to mark certain emails as confidential. Some even prevent forwarding of confidential emails. Another strategy is to use confidential stamps for any confidential documents. The Court has considered segregating confidential documents to specific locked rooms or locked filing cabinets as a means of expressing confidentiality.
Confidentiality provisions incorporated or part of employment contracts are typically formally drafted in contractual language. Communication policies can be written in less formal language. One way to convey the concept of confidential business information is to pose the question: would a competitor like to know this?
A more difficult topic is the protection of privacy. Some policies simply state that it is inappropriate and could be grounds for discipline to disclose in any electronic format--e-mail or blogs---anything that an employee would not feel comfortable saying to their supervisor or boss. Often this comes down to common sense but employees are often more cautious when they are expressly warned that their jobs could be on the line. A communication policy should include express prohibitions on publishing information that identifies, even by inference, other employees or that could be considered harassment or defamation.
A common theme in confidentiality policies is to convey to employees that they are personally responsible for what they post and that their potential audience includes everyone.
Employees should be required to post clear disclaimers that their opinions and statements are theirs and are not authorized by nor reflect the opinions of their employers. It may be prudent to prohibit disclosure of any information that could identify the employer or any other employees.Privacy and Confidentiality Surrounding Employee Work Blogs
If you have any questions or have been wrongfully dismissed due to something you posted then please contact an employment lawyer