Australia: How do the Information Privacy Principles apply during a social media misconduct investigation?

In Jurecek v Director, Transport Safety Victoria [2016] VSC 285 (11 October 2016) (Jurecek), the Supreme Court of Victoria (the Court) clarified the application of the Information Privacy Principles (IPPs) to an investigation of employee misconduct on Facebook.

In Jurecek, the Supreme Court of Victoria confirmed that the IPPs operating under Victorian privacy legislation may apply to information on an employee's social media account.

However, the findings of the Court indicate that the IPPs need not be interpreted by employers in a manner that jeopardises an investigation into misconduct on social media. The Court took a practical approach, largely adopting the assessment of the factual circumstances by the Victorian Civil and Administrative Tribunal (VCAT) at first instance.1

Ms Jurecek was employed by the Department of Transport, but was seconded to assist the Office of the Director, Transport Safety Victoria (the Respondent) (TSV).

This case concerns a series of exchanges that occurred on Facebook between Ms Jurecek and a colleague, both on a Facebook 'wall' and in private messages.

The nature of these exchanges was the subject of much dispute between the parties, including:

  • whether Ms Jurecek actually wrote some of the impugned posts and messages;
  • how Ms Jurecek and her colleague's Facebook profile pages were accessed; and
  • the privacy settings of the respective Facebook profile pages at the relevant time.

However, as TSV considered the posts and messages sent by Ms Jurecek to her colleague to be abusive in nature, it considered an investigation into her conduct was warranted. After an initial internal investigation, TSV engaged an external investigator who concluded that the allegations of misconduct on social media were substantiated.

TSV accepted the findings of the external investigator and issued a formal warning to Ms Jurecek, noting that another investigation would be conducted into an allegation that she had lied during the investigation process.

Ms Jurecek made an application to the Victorian Privacy Commissioner complaining about her treatment by TSV. After rejecting these complaints, the Commissioner referred the matter to VCAT, which also found (for the most part) that the complaints were not proven.

Ms Jurecek claimed that TSV breached the IPPs set out in Schedule 1 of the Information Privacy Act 2000 (Vic) (Privacy Act) (the predecessor to the current Privacy and Data Protection Act 2014 (Vic)) by arguing, in summary, that:

  • TSV's collection of the personal information from her Facebook account for the purposes of a workplace disciplinary investigation, or without her knowledge or consent, was not 'necessary for one or more of TSV's functions or activities', in breach of IPP 1.1;
  • TSV did not collect the personal information only by 'lawful and fair means and not in an unreasonably intrusive way', in breach of IPP 1.2;
  • TSV did not make Ms Jurecek 'aware' that the personal information had been collected, in breach of IPPs 1.3 and 1.5; and
  • TSV did not collect the personal information from Ms Jurecek directly, in breach of IPP 1.4.

TSV argued, amongst other things, that some of the information obtained from Facebook was not 'personal information' for purposes of the Privacy Act.

The decision of Justice Bell of the Supreme Court of Victoria confirmed that:

  • information on Facebook may be 'personal information' for the purposes of privacy laws, even if it is accessible to anyone online – that is, information on Facebook does not necessarily constitute a 'generally available publication';
  • TSV did not breach IPP 1.1 as the collection of the personal information was necessary for a misconduct investigation, which is a legitimate purpose;
  • TSV did not breach IPP 1.2 as the collection of the personal information was not by unauthorised means (nor unreasonably intrusive) - the information was located through Facebook searches (or provided to TSV by the employee who was the target of Ms Jurecek's posts and messages);
  • TSV did not breach IPP 1.3 and 1.5, as these principles impose an obligation to take reasonable steps to ensure the individual is made aware of the specified matters, but does not stipulate how this is to be done – therefore, for example, TSV was not required to immediately notify Ms Jurecek of the collection of the information as this would have jeopardised the investigation;
  • TSV did not breach IPP 1.4 as it was not 'reasonably practicable' for TSV to obtain the personal information from Ms Jurecek directly - this would also have jeopardised the investigation.

THE JURECEK CASE: IMPLICATIONS FOR EMPLOYERS

The Jurecek decision will have different implications for employers, depending on the privacy legislation which is applicable in a particular employment context.

The IPPs under the Privacy and Data Protection Act 2014 (Vic) apply to the handling of employees' personal information in the Victorian public sector. Similar legislation applies in NSW and Queensland.

At the federal level, the Privacy Act 1988 (Cth) sets out Australian Privacy Principles (similar to the IPPs) applying in the public sector and to private sector businesses with an annual turnover of at least $3 million. 'Employee records' are exempt from the privacy obligations imposed under the federal legislation.

Records of employee email and internet use may in some circumstances constitute an 'employment record' falling with this exclusion. However, it is safer for employers to assume that any monitoring of employees' email or internet activity (and possible misuse) is subject to the federal privacy law. Several decisions support the carrying out of such monitoring as being legitimate and for a lawful purpose under the Privacy Act.2

The decision of the Supreme Court of Victoria in Jurecek has confirmed that while state or federal privacy protections may apply to information on an employee's social media account, compliance with these laws does not prevent an employer from conducting a robust disciplinary investigation.

However, employers should be aware of their obligations under the applicable privacy legislation – particularly in relation to the requirement that employers notify an employee that his or her personal information has been collected.

Footnotes

1 See Jurecek v Director Transport Safety [2015] VCAT 253.

2 See e.g. Griffiths v Rose (2011) 192 FCR 130.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions