News

Year-long smear campaign over multiple websites results in large damage award

The Supreme Court of British Columbia ordered a very high damage award for online defamation with its decision in Rook v Halcrow.

The plaintiff, Brandon Rook, had been director and CEO of a mining company, a founder of his own company, and provided business consultancy services. He had entered into a romantic relationship with the defendant for less than a month in 2015, and then again for about six months in 2016: on both occasions Rook was the one to end the relationship. The relationship ended in July 2016: from August 2016 until August 2017, scores of posts about the accused were made on many websites. These claims included that he was an alcoholic, that he was a business failure and a fraud, that he had STDs, and that over a period of many years he did not disclose these STDs to sexual partners and had spread them (which the trial judge noted amounted to an accusation that Rook had committed sexual assault), that he was heartless and uncaring, that he failed to pay child support, and others.

Among other places, these posts had been made on Instagram, giving Rook’s name and attaching his image, with the hashtag #brandonrook as well as others like #loserlife, #drunk, #noheart, #notnicepeople, #whatswrongwithpeople, and #stdspreader. In addition, there were multiple postings about the plaintiff on sites such as thedirty.com, stdcarriersdatabase.com, stdregistry.com, liarscheatersrus.org, reportmyex.com, cheatersandbastards.com, www.badbizreport.com, deadbeatregistry.com, and others.

The defendant’s only defence was that she was not the one who had made the posts, but the trial judge noted that the evidence was “clear and compelling” that she had done so. First, there was expert evidence that the IP address from which the defendant sent emails to the plaintiff was also the IP address used to set up the Instagram account from which the posts in question were made. The defendant suggested that others could have used her WiFi while at her house to set up the account, but the judge found that explanation not credible. In particular this was because: the defendant frequently texted the plaintiff about taking down the posts and threatening to put them up again or to create further posts; the phraseology in the posts was remarkably similar to that of the defendant in her texts, and; there was no evidence of anyone else with a motive to make the posts or the knowledge of the personal details which were mentioned.

The judge found it unambiguous that the posts were defamatory, and noted that each post was a separate cause of action on its own. Further, although proof that the posts had come to the attention of a third party was not necessary if it could be inferred, in this case there was such proof. First, there was evidence from the accused’s ex-wife that she had read them. Beyond that, it was apparent from the sites that some individual posts had been viewed thousands of times, and many had comments on them.

The judge noted that defamatory statements were presumed to be damaging, but that in addition aggravated damages could be awarded where actual malice was shown, as it was in this case. The plaintiff was therefore awarded $175,000 in general damages as well as $25,000 for aggravated damages. In addition, the plaintiff had engaged the services of reputation consultants to assist him in having the defamatory postings removed, and so he was also awarded US$29,870 as special damages for the cost of that service. In addition he was given an injunction restraining the defendant and others with knowledge of the order, wherever they were located in the world, from publishing any of the comments contained in the attached schedule.

Defamation plaintiffs granted summary judgment and permanent injunction after effusive campaign of internet defamation

In West Edmonton Mall Property Inc. v. [Defendant], the plaintiff company and its principal had commenced a defamation action against the defendant, who had previously operated a store in the West Edmonton Mall that sold beachwear and swimwear. At one point she had made a Facebook post in which she invited the Premier and Prime Minister to come to her store, in order to discuss the “retail apocalypse” that she felt was happening to small business owners. After this, her store was closed, her lease terminated and her product seized, all for alleged non-payment of rent. The next series of events was described by Justice Douglas Mah of the Alberta Court of Queen’s Bench as follows:

[21] Following Surfco’s demise at WEM, sometime in 2017 Ms. Proctor began her internet campaign of criticism and disparagement against the Ghermezians and their mall complexes. Using social media platforms such as Facebook, Twitter, Instagram and LinkedIn, as well as her own website (americandreamstore.blogspot.com) and Youtube channel, Ms. [Defendant] has relentlessly attacked, insulted and heaped scorn on David and his family and WEM and its associated businesses. The extent and scope of these attacks are described in some detail in 52 paragraphs of David’s affidavit of November 7, 2019 along with examples as exhibits. Apparently wishing that nothing be overlooked, Ms. Proctor herself, as her own evidence, submitted screenshots of the material in question, which evidence is contained in three large binders and, as I said, comprises by estimate some 1000 pages.

[22] It would be difficult to recite the complete catalogue of Ms. [Defendant]’s work. Rather, for illustrative purposes, I will mention some examples and try to focus on the material that David and WEM find most troubling and defamatory.

Justice Mah went on to catalogue a large representative sample of the defendant’s internet-based hostility towards the defendants, which was largely along fairly racist, anti-immigration and other critical lines, referring to the individual plaintiff in particular as having stolen the defendant’s business, calling him a “snake” and involved various videos in which the plaintiff’s head was superimposed onto different bodies. On the day of the hearing she had filed a new affidavit with an accompanying video, which showed the head of the plaintiff’s lawyer superimposed onto the body of a bikini-clad woman, and referred to the lawyer’s law firm as “SNAKE LAW.”

The court considered the plaintiffs’ application to be granted summary judgment on the defamation claim (having already dismissed the defendant’s counterclaim for being vexatious and not disclosing a cause of action). The defendant’s various communications were clearly defamatory, particularly in that they suggested that the plaintiffs were criminals and terrorists. Given that the comments were published on the internet, “there was publication of the defamatory comments to the entire world: Fort McKay Métis Community Association v Morin, 2019 ABQB 185 at paras 1, 55-56.” No defences were available, particularly as the defendant was found to have been motivated by malice.

Further, because the defendant had already wilfully failed to comply with various orders and an injunction against her behaviour, there was “a clear danger that Ms. [Defendant], if unfettered, will engage in online activity that will contravene fundamental notions of justice and undermine the integrity of the judicial process.” Justice Mah extended the previous injunction and added a provision enjoining the defendant from publishing any material or commentary concerning the proceedings or anyone involved in them. It was clear that the plaintiffs were in a position to apply for a permanent injunction as well, and in that regard Justice Mah stated:

As far as I am concerned, what is at stake for Ms. [Defendant] in any permanent injunction application is the extent to which she should be allowed to access and use the internet, given her history of misuse. Her chances for continuing to be allowed to use the internet will, in large part, depend on whether between now and the date of the upcoming application, she has complied with Court Orders and has demonstrated that she can use the internet responsibly.

Ontario Law Reform Commission proposes reforms in light of internet defamation

On March 12, 2020, the Law Commission of Ontario (“LCO”) released Defamation Law in the Internet Age(“Final Report”). This Final Report builds on the analysis of the LCO’s November 2017 Consultation Paper, looking at reforms driven by two primary factors:

first, that the internet is now the arena in which much, if not most, defamation occurs and, second, that the internet has had an unprecedented impact on the two core values underlying defamation law: freedom of expression and protection of reputation. (p 1).

In its Final Report, the LCOmakes 39 recommendations. For the most part these recommendations do not address the substantive law of defamation, which the LCO proposes should continue to be defined by the common law. Other than some specific proposals, such as narrowing the definition of “publication”, the recommendations address the mechanisms for enforcing defamation law, including through measures involving internet intermediaries such as Facebook and Google.

Many of the report’s recommendation aim at improving access to justice in defamation disputes in Ontario by diverting high volume, low value defamation claims away from the formal court system and encouraging informal, practical resolutions. To accomplish this, the LSO recommendations contemplate three procedural streams for resolving defamation complaints:

1. Notice and takedown
   
   All defamation claims would begin with the complainant serving a mandatory notice of complaint of the alleged defamation to the publisher. In certain circumstances, this service might be effected electronically, such as by email, text, or private messaging to a social media account (p 40). Electronic service of a defamation notice is not currently permitted in Ontario.
   
   If the complainant cannot contact the online publisher directly, the notice requirement would be met by sending notice to the intermediary platform about the allegedly defamatory material being hosted on the platform. The platform would then pass the complaint on to the publisher without assessing the legitimacy of the claim and while protecting the identity of anonymous publishers (p 45). The intermediary platform would play a crucial role in improving access to justice in online defamation disputes:

   The LCO recommends that the publisher be granted two days to respond to the allegation. If the publisher does not respond within the required time, it would trigger the intermediary platform’s obligation to take down the allegedly defamatory content from its online publication. However, if the publisher does respond, then the complainant could pursue the publisher directly, either by informal means or through a defamation action. (p 71)

2. Online Dispute Resolution
   
   The report also encourages the government to explore allocating public resources to developing a voluntary Online Dispute Resolution (ODR) platform as an inexpensive and expedient mechanism to structure and facilitate informal negotiations and resolutions. Specifically, the LCO advocates for a government-created ODR tribunal (p 100). British Columbia has implemented the Civil Resolution Tribunal (“CRT”) to resolve small claims under $5,000, condominium disputes, and recently motor vehicle accident claims below $50,000. The LCO recommends that a government-created ODR tribunal similar to the CRT would improve access to justice in resolving online defamation disputes in Ontario.
3. Court action
   
   Court action would be reserved primarily, but not exclusively, for higher value defamation claims involving professional public interest publishers. Other factors would also be considered, including whether the complainant was a private individual or someone with a public reputation, and the nature and extent of reputational harm at issue. Here, a preliminary anti-SLAPP motion would remain available to defendants, and an additional new motion would be introduced for an interlocutory takedown order. This order would no longer be based on the “rarest and clearest” test, bur rather a statutory test that would balance the potential for and extent of online reputational harm suffered by the plaintiff against the public interest in protecting freedom of expression in the circumstances would be introduced (p 57). This would be used “where the potential for reputational harm significantly outweighs the expressive value of the publication at stake” (p 16). With respect to Norwich orders, the LCO recommends that filing a notice for a Norwich order “should automatically put intermediary platforms on notice that they must preserve evidence of the IP address at issue” (p 61).

The LCO summarized these three proposed approaches in chart form.

The Report also proposed some specific changes to defamation law, and suggested other procedural changes. For example, the LCO argued that “disparate limitation periods for different types of publication are no longer justifiable in the internet era” (p 49) and recommended that there be a single limitation period of two years applicable to all defamation claims. The Report also suggested narrowing the definition of “publication” in the context of defamation so that, generally speaking, internet intermediaries would not be liable for defamatory third party (user-generated) content. Instead those intermediaries would be responsible under the notice and takedown regime, but would not face common law liability.

Nova Scotia Barristers’ Society publishes report providing guidance on the ethical use of social media

The Nova Scotia Barristers’ Society recently published a report entitled Conduct Unbecoming: What should the Society do when it comes to gossip, online posts and bad behaviour on social media? The report, written by an NSBS staff lawyer, begins by noting that the Society has seen an upswing in reports, calls and complaints to it regarding social media activity by lawyers. While it is clear that lawyers enjoy freedom of expression under s. 2(b) of the Charter in the same way as all citizens, there are ethical constraints on them which potentially require the regulator to intervene. Not every form of speech was necessarily subject to Society scrutiny and/or discipline, and the report noted that such regulatable speech would fall into one of three categories: 1) Speech that could be considered imprudent, rash, rude, defamatory or even offensive, but does not cross the threshold into being discriminatory or harassing; 2) Speech that involves the justice system: encouraging respect for the administration of justice; and 3) Speech that is discriminatory or harassing.

The report reviews the decisions of the Supreme Court of Canada in Doré and Groia, noting that there is a balance to be struck between the fact that lawyers have voluntarily joined a profession which may require constraining their speech with the desirability of lawyers being able to speak their minds. In conclusion, it offered a set of principles that would be used in evaluating a lawyer’s speech:

First principle: A lawyer has “willingly joined a profession that was subject to rules of discipline that [they] knew would limit [their] freedom of expression”

Second principle: We must take into consideration the importance of the expressive rights in each case, in light of (a) the lawyer’s right to expression and (b) the public’s interest in open discussion.

Third principle: The Society should only limit its members’ freedom of expression in their private lives insofar as it is necessary to do so to “protect the public interest in the practice of law.”

Fourth principle: The Society must consider the unique circumstances in each case: such as what the lawyer said, the context in which they said it and the reason it was said.

Commissioners specifically call for vigilance regarding “scope creep”

On Data Privacy Day, January 28, 2020, the Information and Privacy Commissioners of the four Atlantic Canadian provinces issued a statement intended to highlight the privacy implications of the adoption of facial recognition technology. The statement included a backgrounder on the technology, referring to Investigation PC-010005-1 from the Ontario Office of the Information and Privacy Commissioner (OIPC) and a publication from the Office of the Privacy Commissioner of Canada entitled “Automated Facial Recognition in the Public and Private Sectors.”

The backgrounder, available here, also raised the issue of “scope creep” and pointed to the recent implementation of biometric photos on drivers licenses and provincial ID cards in the region.

The statement came shortly after the New York Times wrote a highly-shared article on facial recognition technology that mined social media accounts and is offered to law enforcement.

Commissioners specifically call for vigilance regarding “scope creep”

On Data Privacy Day, January 28, 2020, the Information and Privacy Commissioners of the four Atlantic Canadian provinces issued a statement intended to highlight the privacy implications of the adoption of facial recognition technology. The statement included a backgrounder on the technology, referring to Investigation PC-010005-1 from the Ontario Office of the Information and Privacy Commissioner (OIPC) and a publication from the Office of the Privacy Commissioner of Canada entitled “Automated Facial Recognition in the Public and Private Sectors.”

The backgrounder, available here, also raised the issue of “scope creep” and pointed to the recent implementation of biometric photos on drivers licenses and provincial ID cards in the region.

The statement came shortly after the New York Times wrote a highly-shared article on facial recognition technology that mined social media accounts and is offered to law enforcement.

The final tort of the “four-tort catalogue” has been recognized in Ontario, and likely will be recognized in other common law provinces

In 2016, in the case of Jones v Tsige, the Ontario Court of Appeal imported into Canada the four American privacy torts as articulated by William L. Prosser in 1960. That list includes:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The fourth cause of action, commercial appropriation of the plaintiff's image, was already alive and well in Canadian tort law. The Court in Jones applied the “intrusion upon seclusion” tort and subsequent cases have applied “public disclosure of private facts”, particularly in the context of the non-consensual distribution of intimate images.

In December 2019, the Ontario Superior Court of Justice explicitly recognized the “false light” privacy tort, confirming that the full set of Prosser’s torts exist in Ontario. In Yenovkian v. Gulian, Justice Kristjanson was dealing with an unpleasant family law case in which the husband had made wild accusations against his former spouse, particularly related to their two children.

The judge summarized the husband’s misconduct that was at issue:

[2] It is also about a father, Mr. Vem Yenovkian, who has engaged in years of cyberbullying of the mother, Ms. Sonia Gulian on websites, YouTube videos, online petitions and emails. It is about a father who videotapes court-ordered access visits with the children—both in-person and on Skype—and edits and posts those access visits and photographs of the children on the internet, with commentary. It is about a father who publicly posts on YouTube a video of his son cowering under a table while the father harangues him over Skype on a court-ordered access visit. It is about a father who posts videos of him describing his daughter, who suffers from a neurological disorder, as looking drugged, when she used to be “normal,” and posting that his daughter has a “broken” mind.

[3] Despite court orders prohibiting posting, the father continues his cyberbullying campaign abusing Ms. Gulian and her parents. He seeks to undermine the administration of justice through an online campaign to “unseat” a judge of this Honourable Court for rulings made, internet attacks on trial witnesses and the wife’s lawyer, and by flouting court orders and family law disclosure obligations.

The judge noted, with respect to the list of privacy torts:

[170] With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

1. the false light in which the other was placed would be highly offensive to a reasonable person, and
2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The Court noted that the “false light” may often be defamatory per se, the essence of the tort is presenting the subject of the tort as “other than they are”:

[171] I adopt this statement of the elements of the tort. I also note the clarification in the Restatement’s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.

The Court in this case did not follow the $20,000 “cap” on non-pecuniary damages set out in Jones v Tsige, but rather followed the divergent train of reasoning for general damages that began with the “Jane Doe” cases (Jane Doe 464533 v N.D., 2017 ONSC 127 and Jane Doe 72511 v. Morgan, 2018 ONSC 6607):

[186] There is no claim for pecuniary damages; the only issue is non-pecuniary damages. The infliction of mental suffering and invasion of privacy are based on many of the same facts.

[187] On damages for intrusion on seclusion, the Court of Appeal in Jones v. Tsige held at paragraphs 87-88 that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest, in a range up to $20,000. The important distinction with the two invasion of privacy torts in issue here, however, is that intrusion on seclusion does not involve publicity to the outside world: they are damages meant to represent an invasion of the plaintiff’s privacy by the defendant, not the separate and significant harm occasioned by publicity.

[188] The two Jane Doe cases have recognized that the cap on damages for intrusion upon seclusion may not apply to the other forms of invasion of privacy: Jane Doe 2016 at para. 58; Jane Doe 2018 at paras. 127-132. In this case, as is in those, the “modest conventional sum” that might vindicate the “intangible” interest at stake in Jones v. Tsige, para. 71, would not do justice to the harm the plaintiff has suffered.

[189] In Jane Doe 2016, at para. 52, Stinson J. turned to sexual battery cases for guidance in arriving at an award, and Gomery J. in Jane Doe 2018, at paras. 127-128 followed the same approach. In support of this approach, Stinson, J. pointed to the similarly of the psychological and emotional harm the plaintiff had suffered to that experienced by victims of sexual assault.

[190] I likewise adopt the method of looking to the factors applied to decide damage awards for a tort causing harms analogous to those the present plaintiff has suffered for invasion of privacy. The harm arising from the invasion of privacy in the present case is akin to defamation. Accordingly, in arriving at an award of non-pecuniary damages, I am guided by the factors described by Cory J. in Hill v Church of Scientology, at para. 187, which I am adapting to the tort of publicity placing a person a false light:

1. the nature of the false publicity and the circumstances in which it was made,
2. the nature and position of the victim of the false publicity,
3. the possible effects of the false publicity statement upon the life of the plaintiff, and
4. the actions and motivations of the defendant.

[191] In this case, the false publicity is egregious, involving alleged criminal acts including by Ms. Gulian against her children. The false publicity is widely disseminated on the internet, as well as through targeted dissemination to church friends and business associates. Ms. Gulian has suffered damage as a mother, as an employee, in the Armenian community, and in her church community. She is peculiarly vulnerable as the spouse of the disseminator of false publicity. The false publicity has had a detrimental effect on Ms. Gulian’s health and welfare, humiliation, caused her fear, and could be expected as well to affect her social standing and position. Mr. Yenovkian has not apologized, nor has he retracted the outrageous comments despite court orders.

[192] The damages for intentional infliction of mental suffering are intended to be compensatory. I award $50,000 compensatory damages for intentional infliction of mental suffering, relying on Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419.

Personal Apple ID used to de-activate work phone, making evidence unavailable, and termination of employee reversed

In a BC case of interest which recently came to the editors’ attention, District of Houston v. Canadian Union of Public Employees, Local 2086,an employer’s investigation in to allegations of workplace misconduct was partially foiled by its policy (or lack thereof) regarding the use of work phones for personal purposes. The employee, Standbridge, was given a new work iPhone after his previous one malfunctioned. When the phone was set up, the manager who provided the phone used an Apple ID provided by Standbridge, which resulted in personal pictures and other data being downloaded onto the new phone from iCloud. The manager knew this, and thus did not keep a record of the Apple ID or password. Standbridge claimed that he had told the manager that the Apple ID and password belonged to his wife, though the manager denied this.

Later, Standbridge was accused by several female employees of inappropriately following them to worksites and taking pictures of them with his phone. Standbridge denied this and provided his phone to another manager, Glavin, for inspection, along with the password to open it. Glavin looked at some pictures on the phone but then left it on his desk while at meetings, and when he returned the iPhone had been remotely wiped. It emerged that Standbridge’s wife had learned that the phone was being accessed (though it was not clear she understood why), and because her own personal data was accessible on it, she remotely wiped the phone. Standbridge asked her to provide the Apple ID and password but she refused to do so.

Standbridge was terminated for interfering with the investigation, but was reinstated by the labour arbitrator. The employer had prevented him from being present while some of his personal data was accessed, and some accommodation for protection of his personal information should have been provided—particularly where there was no policy forbidding the mixing of work and personal information on devices, and that up until then it had been a common practice of the employer’s. Evidence substantiating the inappropriate photo-taking, if any, had been destroyed, and the allegations could otherwise not be sustained.

“pics or it didn’t happen”

The presumed ubiquity of social media, or perhaps more accurately of constantly-accessible digital photography, formed a small role in a decision by the Immigration and Refugee Appeal Board in Osman v Canada (Citizenship and Immigration). The appellant was appealing a decision which refused to approve a permanent resident application made by her spouse. Her appeal was also unsuccessful, largely on the basis on the conclusion that she had misrepresented facts in her application (most notably, that her spouse was also her first cousin). The Appeal Board also formed the view that the marriage was not a genuine one, but rather one made only for the purposes of facilitating the immigration application. There were a number of reasons supporting that conclusion, one of which was the absence of photographs:

[32] The Appellant and Applicant did not include any post-wedding photos with their application or for the IAD appeal. Given today’s technology, I expect a young couple (in their early 20s) to take many photos together during their honeymoon phase. When asked why they did not present such photos for the appeal, the Applicant testified that they did not take any photos at that time but did not provide a reason for not doing so.

Employer policies and further research called for

In 2017-2018, the Labour Program of Employment and Social Development Canada conducted a comprehensive review of Part III of the Canada Labour Code, sets out minimum labour standards for workplaces in the federally regulated private sector. That review led to a series of amendments, but five key issues were not resolved, and so the Minister of Employment, Workforce Development and Labour appointed an independent Expert Panel on Modern Federal Labour Standards to consult, research, and provide advice to the Minister. The December 2019 report is the culmination of the Expert Panel’s work and contains the results of the consultations, research, and recommendations. Of particular interest is the discussion there of a potential “right to disconnect”. As the Report of the Expert Panel on Modern Federal Labour Standards puts it:

In today’s world of work, mobile technologies and other factors, such as alternative work arrangements, the 24/7 economy, gig work and organizational cultures have blurred the boundaries between what it means to be "at work" and not "at work". In this context, should limits be set on work-related e-communications outside of work hours in the federally regulated private sector? If so, how should this be done and why?

The Expert Panel did not recommend that there be, at this time, a statutory right to disconnect, but did conclude, in Chapter 4: Disconnecting form work-related e-communications outside of work hours, that serious issues were raised and needed to be resolved.

“Part III of the Code does not currently directly address limiting work-related e-communications outside of regular working hours in this way, and no provinces or territories provide such a legal right.” The Expert Panel acknowledges that the concept of what it means to be “at work” has been blurred by mobile technologies and globalization, and that with “the transition from an industrial society to a service-based society, and the increasing accessibility of information and communication technology tools, work is no longer always tied to a physical location.”

There were many consideration that the played into Expert Panel’s recommendation. These included recognition of the necessity of a “flexible workforce that is available around the clock” to remain competitive in some cases, and awareness that some industries and organizations have a workplace culture of constant availability and connectivity. In addition, they took account of the fact that there can be some trade-off involved, in the sense that despite the potential downsides of constant connectivity from the point of view of an employee, it can also accommodate time zone difference, give employees control over their work hours, and facilitate “on-call” work. They noted as well that such connectivity created equity issues, and therefore some scope for tension: women statistically take on more non-work-related activities outside of working hours, which can limit their ability to respond to requests outside of those hours, which in turn could have a negative impact on competitiveness, promotions, and so on.

The Report notes that workers increasingly use technology to set up flexible work arrangements to create a more satisfactory work-life balance, but on the other hand, “engaging in e-communications for work purposes outside of work hours has been associated with poorer employee recovery from work and increased work—life interreference, high levels of burnout and increased health impairments”.

The Expert Panel discusses some of the difficulties with France’s “right to disconnect”, including that it does not have a legal definition of “right to disconnect” which has led to ambiguity in what that right actually entails. Germany adopted a self-regulatory model that leads to more “tailor-made solutions” and provides the example of the German Labour Ministry coming to an agreement with its own works council to ban communication with staff outside work hours, except in emergencies, and protects employees from reprisals for not responding to such communications. Volkswagen implemented a policy that stops Blackberry servers from sending emails to employees covered by a collective bargaining agreement form half an hour after standards hours until half an hour before they begin work.

Three general themes were at the centre of the Expert’s panel: flexibility, compensation, and management. Ultimately, the Expert Panel did not recommend implementing a statutory right to disconnect at this time. They concluded:

The Panel believes that a statutory right to disconnect would currently be difficult to operationalize and enforce. Part III already provides entitlement to overtime for services required by the employer beyond certain hours of work. Part III also provides some restrictions around the duration of work. These provisions, in part, help to provide a framework to address the negative aspects of this issue. Nevertheless, the Code does not define what is deemed work. Given the blurring of boundaries described above, the absence of such a definition generates ambiguity about what work is for employers, employees and labour standards officers responsible for enforcing labour standards.

Nonetheless the Report acknowledged that a real issue arose, and therefore made four recommendations: 1) that the employers subject to Part III consult with their employees or their representatives and issue policy statements on the issue of disconnecting; 2) that a statutory definition of “deemed work” be included in Part III; 3) that Part III provide a right to compensation or time off in lieu for employees required to remain available for potential demands from their employer; and, 4) that further research be done on the issue.