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The Use of Video Surveillance by Employer Violates PIPEDA
The Canadian Privacy Commission, in a recent decision, has ruled that the use of video surveillance cameras in the workplace by employers seeking to monitor the activities of their employees during working hours violates the Personal Information Protection and Electronic Documents Act (the Act).
The case involved complaints launched by two employees of a railway company who had faced disciplinary penalties for leaving work premises without authorization. The video cameras are normally used by the railway company to monitor train movements and to inform crew members of the locations of trains in operation. The complainants were seen by the manager responsible for the on-site cameras while they entered their private vehicles during normal working hours. The cameras were specifically zoomed in order to confirm that the complainants were in fact leaving work premises. The employees alleged that the use of the cameras amounted to a violation of their right of privacy under the Act.
The railway company defended its conduct on a number of grounds. In particular, it argued that as provided for under the Act, the Commissioner ought to have used her discretion not to issue a report of finding since the matter was also the subject of arbitration. Moreover, since the complainants are party to a collective agreement, it was submitted that labour tribunals, rather than the Office of the Privacy Commissioner, have jurisdiction with respect to the complaint. It was further argued by the railway company that since the cameras are not equipped to record images, the complainants' personal information was not in fact collected. Rather, the images were simply used as "visual aid" in order to allow for proper follow up investigation of an existing concern. In addition, given the high traffic of pedestrians that pass through the rail yard, the complainants' consent was not required as they did not have a reasonable expectation of privacy. Therefore, the railway company argued that a reasonable person would deem it appropriate to use the cameras in order to investigate a possible breach of their employment contract.
The Commissioner acknowledged that the Act does authorize the collection of personal information without consent where there is clear evidence of a breach of trust by an employee. However, it was held that in the circumstances of the case, a reasonable person would not consider the use of cameras as appropriate. The personal information of the employees was collected as defined under the Act notwithstanding the fact that their images were not actually recorded. The Commissioner further noted that the railway company did not present conclusive evidence that the unauthorized absences were a persistent issue in need of investigation and even if there was a pattern of unauthorized conduct, no evidence was presented on the use of less intrusive means for addressing the alleged problem. Accordingly, it was decided that the use of the cameras in the circumstances amounted to a violation of the employees' right of privacy since a reasonable person would not consider it appropriate to use such cameras in order only to monitor employees' workplace performances.
For complete coverage of the ruling please see:
http://www.privcom.gc.ca/cf-dc/2004/cf-dc_040219_02_e.asp