Archive for the ‘privacy tort’ Category
Information Roundup – 5 July 2009
Here are my recent links of note from June 22nd.
If you’re interested in the law relating to corporate e-mail systems, be sure to check out Stengart v. Loving Care Agency Inc., linked through the fifth bullet below. It’s a New Jersey case about whether an employee waived privilege in solicitor-client communications by sending them through a personal internet-based e-mail account on a work computer. The e-mails were recovered by the employer, who claimed it could use them in post-employment litigation with the employee. The Court makes some extremely strong statements against employer control over “personal” communications on work systems – some of the strongest I’ve read.
I find the reasoning in Stengart troubling, but am withholding an opinion pending further thought. What’s immediately remarkable to me, however, is how value-laden these e-mail judgements are. Try reading the Alberta Court of Appeal’s recent Poliquin decision and Stengart back-to-back and you’ll see what I mean. This is not good in my view. As a management side advisor and advocate I’m not inclined to promote the enactment of privacy legislation, but if we are going to have enforceable privacy rights, enacting good and balanced privacy legislation might be a way to make such rights understandable. Without predictability, policy-making will be difficult and litigation of reasonable positions might be prohibited by risks that cannot be controlled. These thoughts to be continued at a later date.
- Liked Mike Fitzgibbon’s Summary Judgement in Employment Disputes: http://bit.ly/PHB7y
- RT @marciahofmann: Associated Press imposes strict social networking policy on staff. http://bit.ly/141mCZ (via @dmkravets) [Thank you!]
- Editing Tip: Spell Out Numbers One to Ten, and Don’t Repeat Them in Parentheses: http://bit.ly/6yVHD [Via @eschaeff]
- RT @sectorprivate Some Professors’ Jitters Over Twitter Are Easing http://tinyurl.com/ktxwrq [Thanks Greg!]
- RT @nggauthier The Perils and Promise of the New Jersey Workplace Privacy Ruling: http://bit.ly/U2Kif
- NYT editorial on college binge drinking: http://bit.ly/19J7N7
- RT @PrivacyLaw “Lawsuit against Jefferson County Public Schools” http://tinyurl.com/mf358p
- The Ann Arbour Chronicle argues for e-FOI:http://bit.ly/viW4J
- RT @PrivacyLaw: “Canadian gov’t: you have no expectation of privacy on the Internet” http://tinyurl.com/m5scnk
On a personal note, Seanna and I are new parents of Penelope Green Robinson. She was born two days ago and is very healthy. “Green” is from Joni Mitchell’s song “Little Green” – a lovely (though sad) song about a mother’s love for child. Here’s a pic of PG and her brother Bug, who has been very welcoming. As for me, I’m feeling very grateful for my family and for the wonders of life.
See ya!
Dan
Case Report – Raitt “lost recorder” judgement published
The Nova Scotia Supreme Court has published Moir J.’s decision on the lost digital recorder containing embarrassing comments made by Minister of Natural Resources Lisa Raitt. I was quoted by the National Post here, but really didn’t have much to say at the time. This is no criticism of the conclusion embodied in Moir J’s cursory (oral) judgement, but now that I’ve read it I confess to still having more questions than answers!
The scenario is made for a law school exam:
- Conversation between MacDonnell and Raitt, Raitt a public figure
- Recording made unknowingly and in presence of limousine driver
- Recorder misplaced by MacDonnell in a bathroom
- Recorder found and passed to reporter
- Reporter contacts MacDonnell to advise of finding
- MacDonnell says she’ll pick the recorder up, but doesn’t
- Time passes
- MacDonnell misplaces Ministry’s confidential documents and resigns
- Raitt comes under scrutiny
- Reporter listens to recording in the name of the public interest
- Reporter gives notice of intent to publish recording
Ms. MacDonnell relied on a privacy and property based claim. Moir J. held that she had not established a case sufficient to restrain publication. Here is the core of his oral judgement:
I agree with the submission for the Herald that the recorded conversation was not private because some or all of it was heard by a department driver…
Here is where I see the restriction on prior restraint having some place in laws of invasion of privacy, if such a tort is to emerge. It is wrong to deprive the press, and the public it serves, of remarks made privately, but not confidentially in the sense of trade secrets or privileged communications, after those remarks became available because of poor record keeping or management.
Bailment and conversion are torts applicable to personal property rights. The digital recorder was personal property. There is no bailment, and can be no conversion, of pure information. Information is protected as intellectual property.
Here are my questions. Wasn’t the driver bound to secrecy? Was this fatal to the expectation of privacy claim? When should poor record keeping constitute abandonment? How critical was Ms. MacDonnell’s failure to pick up the recorder as planned? Did she tell the reporter not to listen? Would that have made a difference? Did the information at issue and the public’s interest in receiving it weigh in the balance? If so, to what extent. You can start to see how the parameters of a privacy claim are very complex.
Two other points. One, the judgement creates a hierarchy of concepts: privacy seems less important than privilege and trade secret protection. I recently blogged about the Daniel Potter case here. It does the same thing. Two, whether the property torts can be used to re-gain control of information is a big issue for employers. I’ve blogged about it here.
