Almost everyone has a presence on social media. Individuals capture moments from their personal lives, sharing daily experiences online using apps like TikTok. With the emergence of new technologies, various other services have integrated features to compete in the same space as TikTok. For instance, Instagram by Facebook offers tools for creating 'reels', and YouTube provides similar functionalities with 'Shorts'. While the specifics may vary across these platforms, the primary objective remains consistent – sharing videos or images depicting one's activities with the wider digital world.
Most users on social media are young individuals engrossed in following the latest trends on these apps. Streets are often filled with people dancing to create content for social media posts. This practice has become so widespread that onlookers, initially curious, now tend to overlook these 'performers' as they pass them creating their social media content. However, everyone unintentionally in the background becomes part of a video they never wanted to feature in.
This practice has been more prevalent in other spaces as well. Everyone takes out their mobile these days to record whenever something happens. It appears everyone wants to be a news reporter for the daily TikTok. While this helps generate more social awareness, sometimes it results in violating the privacy of individuals who never consented to their faces being pasted on the internet. For example, you might have been in an accident. Few would want a picture of their bleeding face and injured body being carried over to the ambulance posted on the internet for everyone to see.
While Canadian privacy laws protect individuals from having their personal information collected, used, and disclosed without their consent, these laws provide limited protection to individuals from being photographed or filmed in public places. Which means it is tricky to stop someone from making a TikTok video recording you, even though the use of your information for commercial purposes would require consent. The reason is that there is a reasonable expectation of privacy in certain situations, such as in private residences, bathrooms or changing rooms. In public places, however, there is no such expectation of privacy.
The Personal Information Protection and Electronic Documents Act (PIPEDA) is a federal privacy law in Canada that applies to the collection, use, and disclosure of personal information in the private sector. Though PIPEDA does not specifically address privacy in public places, it does provide guidelines for how personal information should be collected and used. This includes requirements for obtaining consent, limiting the collection of personal information to what is necessary, and ensuring that personal information is accurate and secure.
Therefore, anyone can take photos or videos of individuals in public places without their consent. This can include taking photos or videos of people walking down the street, sitting in a park, or attending a public event. As long as the images are taken in a public place and are not used for commercial purposes, they are generally legal.
There are a few exceptions to this rule. For example, if someone takes photos or videos of individuals in a way that is harassing, intimidating, or threatening, this could be considered a violation of their privacy. Additionally, if someone takes photos or videos of individuals that are intended to be used for commercial purposes, this could also be a violation. However, privacy laws on protection of information on social media are still not clearly defined, especially for non-commercial purposes.
Which leaves us to fall back on moral obligations of respecting others. But every individual does not stop to think of someone else's privacy. Many people are also not worried about use of their private information for non-commercial purposes. If they think about it at all, they may believe it does not matter if they appear in someone else's photo album. But they are not considering how this information is sold by corporations for money.
With the rise of facial recognition technology and other forms of surveillance, individuals' privacy in public spaces is increasingly at risk. Identity theft is that much easier if your picture is all over the internet. With AI platforms of all types including publicly available data in their Large Language Models, applying facial recognition technology is even easier. These companies are data mining for facial data using information about you freely available on the internet. Most social media applications include a blanket consent to collect and republish information. Individuals rarely read through the lengthy privacy policies which "disclose" this.
Since privacy laws in Canada provide limited protection from being photographed or filmed in public places, it is up to individuals to be aware of their surroundings and take steps to protect their own privacy when in public. This could include avoiding areas where there may be cameras, or taking steps to ensure they are not being photographed or filmed without their consent. Individuals can also tell the person recording the images to not record them.
As major portions our lives move to the internet, there is a need to be more vigilant about privacy. Canadians also need better laws to protect their privacy. The Digital Charter, though promising, has been hanging in Parliament since 2022. With technology changing at a fast pace, the legislation always seems to be a step or two behind. Hopefully Canadians will soon see greater protection of their privacy and robust privacy regulations.
Keep posted on our blog as we carry forward this discussion on how technologies like AI are impacting privacy.
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.
