20 Advoc. Q. 221 (1998)
Can an Employer Search the Contents of Its Employees' E-mail

handle is hein.journals/aqrty20 and id is 253 raw text is: CAN AN EMPLOYER SEARCH THE CONTENTS OF
Holly L. Rasky*
Whether an employer has the right to read its employees' e-mail
may arise in several contexts: wide spread e-mail abuse, harassment
and discrimination of employees, possible illegal activities (such as
dissemination of pornography), to name just a few. The question
raises two important issues: (1) Who owns the e-mail? and (2) Is
there a reasonable expectation of privacy on the part of an employee
using his employer's e-mail system?
No doubt, there are individuals who will argue that, while the e-
mail system (including the hardware, computer and telephone lines)
belongs to the employer, there is an implied expectation of privacy
when using the system, and therefore the employer does not have
the right to read an employee's e-mail.
As will be discussed below, the law supports the proposition that
e-mail is the property of the employer. E-mail, once sent and
received, forms an electronic file, which is also the property of the
employer. It is a document which a court may order produced by the
employer, and forms part of an employer's business records. It is not
the property of an employee.
Absent an agreement to the contrary (such as a policy or term of
a contract), the law supports an employer's right to read its employ-
ees' e-mail. This right stems from the employer's right to control its
workplace. The law also supports the proposition that an employer's
right to read its employee's e-mail is no different than an employer's
right to read files kept in a filing cabinet.
Unfortunately the issue has not been squarely addressed by the
Canadian judicial system, nor by statute. This creates some uncer-
tainty for both employers and employees. For this reason, employ-
ers should establish workplace e-mail policies which, at a minimum,
* The author is an associate lawyer with Genest Murray DesBrisay Lamek, Toronto,
where she practices labour and employment law (management).

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