As social media continues to dominate modern life, the Courts are increasingly asked to consider its relevance in all manner of contexts and disputes. In Jurecek v Director, Transport Safety Victoria [2016] VSC 285, the Court was required to decide whether Transport Safety Victoria (TSV) breached the privacy of its employee, Laura Jurecek (Jurecek), by collecting personal information from her Facebook page and using it in the context of a disciplinary action.

Background

During the course of her employment with TSV, Jurecek found herself in a Facebook dispute with one of her colleagues, Paula Ferronato (Ferronato). Following a number of work related Facebook posts and chats, the exchange culminated in a final blow by Jurecek, aptly defined as ‘the abusive post’ in the Court’s decision. After seeing ‘the abusive post,’ Ferronato brought the chats and posts to the attention of her manager. Between TSV management, a private investigator and a linguistic expert, a full investigation was undertaken and Jurecek was ultimately given a final warning.

Jurecek initially made a complaint to the Privacy Commissioner on the grounds that TSV had breached the Information Privacy Principles (IPPs) in Schedule 1 of the Information Privacy Act 2000 (VIC) (the Act). The Commissioner dismissed the complaint.

Pursuant to Jurecek’s request, the Privacy Commissioner referred the matter to the Victorian Civil and Administrative Tribunal (VCAT). Following an eight day hearing, during which a number of witnesses provided evidence, Jurecek’s application was dismissed.

Jurecek appealed to the Supreme Court of Victoria. His Honour Justice Bell granted Jurecek leave to appeal on the basis that it “raised important, novel and reasonably arguable questions about the application of the Information Privacy Act in the social media context and in particular about the application of the Information Privacy Principles to personal information on Facebook”.

The Appeal

It is important to note that Jurecek did not contend that TSV failed to comply with the IPPs by receiving (and therefore collecting) personal information about her from Ferronato when she made the initial complaint to her manager. Rather, Jurecek complained that during the course of the investigation, TSV collected personal information about her from her Facebook page (which she operated under a pseudonym) without first attempting to obtain it from her directly and then used that information in the course of disciplinary action without making her aware of what information had been obtained.

The appeal considered whether:

  1. the collection of the information for an investigation was necessary for the TSV’s ‘functions or activities’ (IPP 1.1);
  2. the collection of information from Jurecek’s Facebook page was fair and not unreasonably intrusive (IPP 1.2);
  3. TSV made Jurecek aware of the collection of information as soon as practicable by means of a Notice of Investigation (IPP 1.3 and 1.5); and
  4. it was reasonably practicable to obtain information from Jurecek’s Facebook page, rather than from her directly (IPP 1.4). 

The case also considered the influence of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) in interpreting the Act, in particular, in balancing in a ‘reasonably proportionate way,’ the nature and importance of the purpose of collection and the extent of the interference. It was common ground in the appeal that the Tribunal was correct to interpret the IPPs as human rights legislation pursuant to s 32(1) of the Charter.

Decision

The Court considered each of the grounds raised by Jurecek and ultimately dismissed the appeal on the basis:

  1. TSV was conducting a ‘necessary function’ by  investigating its employee for misconduct (IPP 1.1);
  2. TSV collected the information by lawful means (IPP 1.2);
  3. TSV took reasonable steps to ensure Jurecek was aware of the purpose the information was collected by providing her with a Notice of Investigation (IPP 1.3 and 1.5); and
  4. it was not reasonable for TSV to obtain the information directly from Jurecek as it was appropriate for TSV to conduct the investigation up to a certain point without first approaching Jurecek.

The decision is a timely reminder that privacy and human rights laws will not automatically shield an employee from a disciplinary investigation, whether the misconduct occurs on Facebook or anywhere else for that matter. It is also an important reminder for employers to be aware of their privacy obligations under State and Federal legislation.

Observations

This case confirms that if personal information is collected for an appropriate purpose in a lawful and reasonable manner, an employer can use that information for that purpose without breaching privacy law.

Employers can minimise complaints about the collection of information of this kind by implementing policies concerning social media use (within and outside working hours), as well as policies which identify when the employer will monitor technology used by employees (including devices provided by the employer for use outside of working hours). Any workplace surveillance policy must also reflect the limitations imposed by relevant surveillance legislation.

In implementing policies concerning social media use, employees should be reminded not to underestimate the permanency and reach of their online conduct and its potential to affect their employer's reputation and their ongoing employment.