Canadian HR Reporter

February 9, 2015

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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Canadian HR RepoRteR February 9, 2015 News 3 persoNAl > pg. 8 BYod policies could use upgrades with newer CaSL requirements Installing software, updates on employees' personal devices requires consent By SaRaH doBSon LaSt Summer, Canada's anti- spam legislation — CASL — came into force with a flurry. Various departments, including IT, mar- keting and HR, were kept busy trying to ensure their organiza- tions didn't run afoul of rules that restrict how businesses can com- municate with each other and the public via email and text. On Jan. 15, 2015, sections of the act came into force related to the unsolicited installation of com- puter programs or software, so it looks like there's still more work to be done. CASL prohibits the installation of a computer program (software) on another person's computing device (such as a laptop or smart- phone) in the course of commer- cial activity without the express consent of the device owner or an authorized user. "In the context of an employ- ment relationship, the employer would be the owner and the em- ployee would be the authorized user," said the Canadian Radio- television and Telecommunica- tions Commission (CRTC). If an employer is not consid- ered by CASL to already have consent without needing to ask for it, it must request it before installing the software. And this has implications for bring-your- own-device (BYOD) policies in the workplace. "A lot of employers may think… 'We're not the target of this legis- lation' but if you look at the legis- lation and how it applies, I think it's reasonably clear that it applies," said Daniel Michaluk, chair of the information management and privacy practice group at Hicks Morley in Toronto. "e basic premise around it is about being transparent about an employer's interest in the per- sonal device and … the premise of a BYOD policy is transparency about the employer's interest in a personal device, and BYOD often involves installing software on an employee's personal device." However, there may be a gap around the rigours of the consent rule under CASL, he said. "You need express consent and the express consent has to be re- quested in a certain way, and then if the software performs certain intrusive functions that employ- ees might not reasonably expect, you have to actually provide addi- tional information, so everything pushes you to a more rigorous form of transparency." While employers with a BYOD policy might assume employees who enroll in the program are implicitly consenting when they hand over their device, that could be wrong, said Michaluk. "I don't think handing over a device is something I would be comfortable calling 'express con- sent'— you're implying from an action that is rather remote. So, in that circumstance, I think em- ployers are going to want to go back and perhaps when there's a software update or something like that called for, they're going to put something before employees that causes them to expressly state their (consent)," he said. "If that's the only cost of compliance and, frankly, that's the only one I can see, it's not such a big deal and it's something employers should do." Taking the extra step is in line with BYOD best practice anyway, said Michaluk. "It's almost an opportunity to kind of take a second look at your policy which you may have put out in the early years — when think- ing about these policies wasn't as developed — and to bring it up to snuff," he said. "Why play with fire and guess what the enforce- ment agency's going to do when everything suggests that it's the right way to handle the problem anyway?" BYOD policies or remote com- puting are of concern when it comes to using a personal device, said Martin Kratz, partner and head of intellectual property at Bennett Jones in Calgary. "In each of those cases, I own the property and usually what happens is the user may not be very sophisticated and if the em- ployer installs the computer pro- grams or the employer facilitates installing of the computer pro- grams — like the help desk might do that, for example — then CASL would apply." e legislation says an employ- er needs express consent in those cases and while that can be done in a conversation, the govern- ment has specific informational requirements, he said. "So you can't expressly consent to the installation of a computer program, for the purposes of CASL, unless you provide a pur- pose for which you're requesting

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