Like most of you, I’m sure, I was extra busy before Christmas last year, and to top it all off, I got sick and had to leave some things unfinished. So I couldn’t bring you this brief round-up of things that happened in the last three months of 2011, much of which has to do with technology and how employers will use it to interact with employees and customers.
But it’s a new year and I’ve recovered from my illness and my holidays, so without further ado…
Will we see national anti-spam legislation this year?
Industry Canada has signalled the federal government’s intention to enact early in 2012 its cumbersomely named anti-spam legislation.* Previously known as the Fighting Internet and Wireless Spam Act and the Electronic Commerce Protection Act, the broad and strict anti-spam law mandates significant penalties for contravention and covers activities beyond email and applies to all types of organizations and individuals. Any individual or organization that sends commercial electronic messages must be aware of its obligations under this new legislation.
Organizations should act now to prepare. Alongside a review of the new law, organizations and individuals should take a close look at their current practices and take steps right away to modify them to comply with the law.
Privacy Commissioner reports on online behaviour
The Office of the Privacy Commissioner released its Report on the 2010 Office of the Privacy Commissioner of Canada’s Consultations on Online Tracking, Profiling and Targeting, and Cloud Computing. It’s no surprise the commissioner recommends organizations take a proactive and transparent approach to protecting customers’ privacy, aiming to meet or exceed the standards of the Personal Information Protection and Electronic Documents Act (PIPEDA) or whatever law applies.
New tools to capture, analyze and use customer information have been a boon to business, but they are not without risk. Users often interact with organizations online without a clear understanding of what information is in play, or without knowing that personal information is floating around at all. Organizations might be tempted to take advantage of the personal customer information available to them, for example via online sales, but they should resist.
In more privacy news…
The commissioner decided that an employer may not reveal an employee’s earnings, even if that employee’s salary is subject to public disclosure rules.
The privacy complaint arose when an employee of a PIPEDA employer overheard a superior discussing the employee’s pay with another person. The commissioner found that the supervisor did not clearly understand the personnel policy, and the employer was “insufficiently aware of its obligations under the Act concerning personal information protection.” None of the employer’s arguments swayed the commissioner’s order to implement a legally compliant privacy policy and train employees on their obligations under it.
Controversial copyright law to pass?
In October, the federal government said it wants to pass the Copyright Modernization Act soon. With a majority government, this is fairly likely.
The Act would make significant changes to the way we use and interact with copyrighted content. For one thing, it would explicitly legalize much of users’ already common behaviour, but place strict limits on that behaviour. The Bill should make it easier to prosecute (and hopefully discourage) copyright infringers, if not to catch them.
Just cause to quit
The Federal Court of Appeals affirmed the conditions under which employees can claim they had just cause to quit.
An employee can’t claim to have just cause unless the conditions of employment offer “no reasonable alternative to leaving the employment.” Before that stringent condition arises, an employee must try to work out the problems or attempt to find alternative employment. Without evidence of these efforts, an adjudicator is unlikely to find an employee had just cause to quit. Furthermore, jurisprudence “imposes an obligation on claimants, in most cases, to attempt to resolve workplace conflicts with an employer, or to demonstrate efforts to seek alternative employment before taking a unilateral decision to quit a job.” Employers can feel confident that, in such cases, they won’t be on the hook for damages, other payments or penalties.
And finally…
In an important case from Quebec, the workplace injury tribunal allowed a claimant to rely on Facebook posts to support her allegations of workplace harassment. The defendants argued that the comments were incomplete, they were no better than hearsay and the printed pages of evidence could violate others’ privacy. The tribunal found that the pages offered sufficient context and the defendants had the time and opportunity to confirm the relevant comments and commenters. With respect to privacy, the tribunal argued that:
Considering the multitude of people who might have access to them, the contents of a Facebook profile are not part of the private domain. A user’s list of friends can be long, and the list of each friend’s friends can be equally long. Therefore, the Facebook evidence submitted by the employee does not constitute an attack on the private lives of third parties.
There you have it. Of course, lots more happened, and you can look back over 2011 any time on First Reference Talks. We’ll continue to keep you updated on these developing stories.
*The full name of the Bill is An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
Adam Gorley
First Reference Internal Controls, Human Resources and Compliance Editor
