Lawyers, courts look for privacy balance in surveillance

Lawyers, courts look for privacy balance in surveillance
‘Commencing a legal action implies consent under PIPEDA,’ says David Cherepacha. Photo: Andi Balla
Technology has opened up a wealth of information for lawyers conducting investigations through surveillance for use in court cases, but they need to make sure the collecting of such information is within the bounds of Canada’s privacy rules, experts at a Toronto seminar said last week.
Surveillance is treated like all types of evidence in court, said David Cherepacha, a partner at Davies Howe LLP, who was speaking at a seminar organized by his firm and the Association of Corporate Counsel. And even though gathering the information might violate Canada’s privacy legislation, the Personal Information Protection and Electronic Documents Act, it does not mean the evidence is not admissible in court, he added.

“Commencing a legal action implies consent under PIPEDA,” said Cherepacha.

Beyond traditional surveillance for which organizations or lawyers might hire professionals to obtain video evidence, the proliferation of social media like Facebook has added a whole new level. Ava Kanner, another partner at Davies Howe, told in-house lawyers in attendance several court decisions involving evidence taken from Facebook have weighed in trying to reach a balance between admitting evidence and protecting privacy.

While courts have ruled that the mere existence of a Facebook account is not enough to require its postings be produced in discovery, they have also ruled plaintiffs cannot have serious expectations of privacy when about 350 people are granted access to a private site, Kanner said in her presentation. She gave examples from one of her own cases that saw a Newmarket, Ont. man lose a court case involving a disability claim, when photos on Facebook showed he was involved in heavy physical activity with his family.

Beyond Facebook, getting information when a hard drive is involved, for example when an employer wants to access private of activity of an employer, is something courts have also looked at. “It’s not a certainty that you will get access,” said Kanner. “You have to convince a judge it is relevant and reasonable to privacy.”

Jodi L. Skeates, legal counsel with the Canadian Life and Health Insurance Association Inc., said organizations should be aware of their corporate responsibilities regarding the appropriate use of surveillance. She said surveillance is governed by a series of regulations, ranging from rules of evidence and civil procedure to employment contracts and privacy laws.

PIPEDA is key, but it doesn’t cover all aspects of surveillance, said Skeates. It  applies to organizations that collect, use, or disclose personal information in the course of commercial activities, she said, and also to the personal information about employees of organizations engaged in federal works, undertakings, or business.

Skeates said in-house lawyers should be careful to closely follow proposed regulatory reform in this area, adding the Privacy Commissioner of Canada has been very public in wanting order-making powers, penalties for non-compliance, and the ability to publish the names of the organizations under investigation.

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