If you subsc
ribed to the Ashley Madison site with your work email, your problems may not be limited to your home life. You may also be in trouble at work.
In some industries, professions and jobs, reputation matters. Employers have an interest in setting standards for professional conduct, especially where reputation is an essential requirement for the job. Employers also have the right to restrict employee access to websites and email use to protect the integrity of their IT networks from viruses and other bugs that could infect their systems.
In Krain v. Toronto Dominion Bank, [2002] C.L.A.D., adjudicator Luborsky addressed the issue of employee Internet use in the banking industry. The adjudicator wrote, at paragraph 15:
As an institution with some 45,000 employees who have access to the Internet, the Bank has an obvious interest in ensuring the appropriate use of its time and computer resources. That is particularly the case where the nature of the Internet is such that the identification of the institution downloading and/or forwarding information through e-mail might be revealed, having potential security implications and concerns respecting the institution’s business reputation.
The adjudicator further wrote, at paragraph 23:
… the Employer has the right to impose and enforce relatively strict rules regarding the use of its computer equipment and Internet privileges in its legitimate business interests, which includes an interest in reinforcing reasonable standards of acceptable conduct for the purpose of maintaining a professional and respectful decorum for all of its employees and customers.
Employees, however, do have privacy rights even over their work emails. Employers generally cannot, without warning and without reasonable cause, search work emails that have meaningful and intimate content connected to a person’s biographical core (see R. v. Cole, 2012 SCC 53, for example). If your Ashley Madison emails are meaningful, intimate and connected to your biographical core, then your employer may not have the right to view them.
Nevertheless, it is not only the content of the email that is of concern. To whom the email is sent may be relevant. The identity of the work email recipient may not attract privacy rights even though the content of the email is private. The mere act of sending an email to the Ashley Madison may be problematic at work.
For more information on workplace email privacy issues and workplace Internet use policies, contact Ronald Pizzo who practices in our HR law department.