Internet Communication, Privacy, and Solicitor-Client Privilege

by Marguerite (Meg) E Shaw

The use of the computer, both personally and professionally, is ubiquitous in our daily lives. Seduced by the ease of communication, we are lulled into a false sense of privacy and security. How many of us are routinely using the Internet to communicate with clients? How convenient is it to use our Blackberry or Palm-based hand-held for e-mail messages with each other, our office and clients? How many of our messages contain confidential and privileged information? Now, how many of those messages are encrypted?

In reality, almost no electronic communication is truly private. An e-mail sent to a client might pass through dozens of other computers as it wends its way through cyberspace. Each of those computers along the way may make a backup of that e-mail. And without some form of encryption, plain text or html formatted e-mail is easily read by other parties along the way, just as a holiday postcard can be read by anyone who handles it before it gets to the intended recipient.

Aside from the easy reading of the content of our electronic communications by outsiders, how many of us ever consider that a record is being made of all the transactions we do on the Internet? We leave a record of where we have been on the Internet, how long we have been there, what we have looked at, and what information we sent or accessed. These records are fertile ground for a myriad of uses. In Desgagne v. Yuen et al [2006 BCSC 996], a personal injury case, a motion was brought by the defendant for the production of the plaintiff’s home computer hard drive, Palm Pilot and video game unit for analysis by an expert. The motion, in part, sought disclosure of the web sites the plaintiff had visited as well as the usage metadata of her video game, allegedly to assess her cognitive abilities.

Communicating over the Internet has become a common way of doing business. Brian Tabor, QC, National President, has recently spoken about the increasing trend of Internet Service Providers (ISPs) revising their service agreements with customers to announce they will “monitor or investigate” how customers use their services, and that they will “disclose any information necessary to satisfy any laws, regulations or other governmental request from any applicable jurisdiction.” This appears to be a means to introduce a corporate or industry content monitoring scheme, without requiring the ISP to obtain prior authorization or oversight for their activities. ISPs change to monitor and investigate usage and content of electronic communication on the Internet puts at increased risk our communications and Internet activities.

This raises a significant concern about the possible erosion of a basic right of our clients: solicitor-client privilege. Wikipedia says, “In the law of commonwealth countries, solicitor-client privilege is a type of privilege that protects all communications between a solicitor and their clients from being divulged against the client’s will. The purpose behind this legal principle is to protect an individual’s ability to access the justice system by encouraging complete disclosure to legal counsel without the fear that any communications may prejudice them in the future. It is a fundamental right to all individuals and is the most powerful of all types of privilege.”

The right to solicitor-client privilege is a fundamental tenet of our justice system and the CBA will always remain vigilant in our protection of that right. To read more about this important issue, go to www.cba.org.

This article was published in the August 2006 issue of BarTalk. © 2006 The Canadian Bar Association. All rights reserved.