The Supreme Court of Canada took a broad and flexible approach to determining what circumstances give rise to a reasonable expectation of privacy in R v. Jarvis, 2019 SCC 10 (Jarvis).
Addressing the specific question of whether an individual can have a reasonable expectation of privacy in a public space, the case is expected to have wide-ranging implications in Canadian privacy law. For example:
- Application to technology: The manner in which technology was used in this case was contrary to reasonable expectations of privacy despite the public nature of the place and other forms of surveillance
- Managing the workplace: Privacy rights have to be considered in context which means that what will amount to an expectation of privacy in the workplace will have to consider factors such as the nature of the space, policies, and activities in which individuals are engaged
- Civil liability: A contextual approach may result in more exposure to liability in some cases and less in others; and considering individual privacy rights in space which is not traditionally private, some activities may attract more exposure
The Jarvis case involved a voyeurism charge against a school teacher who secretly recorded the chests of female teenage students with a hidden camera. The accused teacher argued that because he had recorded them in a public place and the students were under video surveillance in the school, they had no expectation of privacy. The Court of Appeal below agreed that the students did not have a reasonable expectation of privacy. The Supreme Court overturned the decision, finding the students had a reasonable expectation of privacy.
The Supreme Court framed the concept of privacy as follows:
..."privacy," as ordinarily understood, is not an all-or-nothing concept...being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording.
Factors to consider in determining expectations of privacy include:
- a person's location
- the form of the alleged invasion of privacy (whether it involves observation or recording)
- the nature of the observation or recording
- the activity in which a person is engaged when observed or recorded
- the part of a person's body that is the focus of the recording
The Court described the reasonableness of the expectation of privacy as being a "normative" standard; meaning reasonableness is to be answered in light of the norms of conduct in our society. This is not a necessarily a reference to what technology is commonly implemented or available on the market. Rather, it refers to case law, ordinary perceptions and context informed by fundamental shared ideals about privacy.
Application of Jarvis to technology and organizations
Jarvis provides some guidance on the interaction of technology and the expectation of privacy. The Court noted that an expectation of casual observance may be much different than focused and permanent visual recordings. Recording has a greater potential impact on privacy than mere observation. Recordings can be saved for long periods of time, replayed and studied at will, dramatically transformed with editing software, and shared with others. The Court concluded that these were not things the individuals would have willingly allowed.
While Jarvis is a case of criminal voyeurism, organizations should take note of the approach the Supreme Court has taken in considering the privacy rights of individuals. Private sector privacy laws, such as Alberta's and BC's Personal Information Protection Act (PIPA), as well as the federal Personal Information Protection and Electronic Documents Act (PIPEDA) are all founded on reasonableness principles. For example, they each set out an overriding limit for collection, use and disclosure of personal information to purposes that are reasonable (Alberta PIPA) or to what a reasonable person would consider appropriate in the circumstances (BC PIPA and PIPEDA). Given the similarity in language to the criminal statute, the Jarvis analysis could apply in the private sector.
In addition, while BC PIPA provides that consent is not required for an "observation" at a performance, a sports meet or a similar event, the distinction the Court makes in Jarvis between general observance in public and the focused application of technology may apply to that exception as well.
Technology and innovation can be positive drivers of new ways to gather and analyze detailed information. Organizations using technological tools to record, enhance or derive information about individuals in focused and potentially personally intrusive ways should:
- Assess the reasonable collection, use and disclosure of that information
- Review privacy policies, notices and consents, considering appropriate ways to manage privacy expectations
- Ensure security is reasonable and sensitive information is appropriately protected from unauthorized use and disclosure
- Limit collection and retention to meet legitimate business and legal requirements
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.