Privacy Rights in the Digital Age - Frances Borgmann
It is widely appreciated that law must be interpreted within its social context. Currently, our social context is defined by the Digital Age in which large amounts of information can be exchanged across a wide audience through various technologies. Though the impact of the Digital Age is wide in scope, the following analysis is limited to how it has reshaped individual privacy within Canada’s criminal law context. Specifically, the Supreme Court of Canada decision in R v Jarvis (“Jarvis”) highlights the unprecedented vulnerability of individual privacy in the Digital Age and the overall inadequacy of the criminal law in addressing that vulnerability. Jarvis’ significance is underscored by its context: in the absence of Parliamentary regulations, social platforms like Facebook continue to act as a vehicle for the rapid spread of abusive content (e.g., revenge pornography). Now more than ever Canadian criminal law needs to be interpreted in the context of the challenges posed by the Digital Age and its accompanying threats regarding incursions into individual privacy facilitated by rapidly evolving technology.
In 2005, Parliament added the offence of voyeurism to the Criminal Code. Voyeurism addresses the social concern of using new, more discreet, technologies to spy for sexual purposes. Significantly, the offence protects a reasonable expectation of privacy. This raises an important and timely question: in today’s Digital Age, where can one reasonably expect privacy? If privacy is traditionally defined on the line between public and private spaces, then this line is blurred by our relatively new and virtually unrestricted capacity to digitally record others. In 2019, the Supreme Court of Canada (“SCC”) faced this issue in the notable decision of Jarvis.
Privacy in public-school common areas
Mr. Jarvis, a high school teacher, used a camera hidden inside of a pen to surreptitiously record students in classrooms, hallways, and other common areas. The recordings mostly focused on female students’ cleavage. The SCC had to decide one question: whether the students could have reasonably expected privacy in the common areas of their school within the meaning of s. 162(1). The SCC reasoned that a person should not accept a violation of privacy just because modern technology makes it easier to violate someone’s privacy. The SCC concluded that the students did indeed have a reasonable expectation of privacy.
The significance of Jarvis lies within the SCC’s rejection of the Ontario Court of Appeal’s (“ONCA”) implication that the Digital Age has eroded all reasonable expectations of privacy within public or semi-public spaces. Privacy, according to the ONCA, is “a place where a person feels confident that they are not being observed”. This definition precludes the finding of a reasonable expectation of privacy within public or semi-public areas. Unsurprisingly, the ONCA concluded that the common areas of a school did not give rise to a reasonable expectation of privacy.
Following the ONCA’s reasoning, attaining true privacy in the Digital Age would mean hiding alone in one’s basement or washroom with the lights off and all recording devices unplugged or shut off. This is because today’s smartphones subject individuals to almost constant observation both outside, and often inside, their homes. Confining privacy to a place where one is “confident that they are not being observed” ignores modern realities and makes individual privacy an empty concept.
Privacy protections beyond state intrusions
Importantly, the SCC in Jarvis adds to criminal law jurisprudence by emphasizing the protection of individual privacy rights by the Charter of Rights and Freedoms (“Charter”). Courts have given reasonable expectations of privacy extensive consideration under Charter rights to privacy from state intrusion (particularly sections 8 and 7). However, the protection of individual privacy from other people has not received the same consideration. This is not to say that there is no societal demand for protecting individual privacy from other people. Rather, Canadian statutory law and common law have not yet grown to meet this societal demand.
This is also not a new societal demand. Legal theorists called for such a legal remedy in the late 19th century. “The Right to Privacy”, a law article published in the 1890 Harvard Law Review, opined on the privacy of the individual within the context of the tabloid press:
For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer…the question of whether our law will recognize and protect the right to privacy in this [respect] must soon come before our courts for consideration. Of the desirability—indeed of the necessity—of such protection, there can, it is believed, be no doubt. [emphasis added]
One hundred and thirty-one years later, this 19th century desire for legal protection of individual privacy has not waned. The context, however, has changed. The concurrent arrival of both smartphones and online platforms of mass reproduction (e.g., YouTube, Facebook, Pornhub, Instagram, Snapchat) amplifies not only the desire but the necessity of such protection by the criminal law. In 2017, Facebook assessed nearly 54,000 potential cases of revenge pornography and “sextortion” on the site in a single month. Facebook relies on users to report abusive content. Surely, it cannot be reasonably argued that it is in the public’s best interest to have Tech Giants (rather than Parliament or Courts) as the most robust line of defence against those who seek to abuse another’s individual privacy.
Remedies beyond the Charter in the Digital Age
Recognizing this gap in legal remedies, in 2012, the ONCA created the tort of intrusion upon seclusion. In Ontario, a person is now liable in the civil context if they intentionally intrude upon another’s private affairs and if that that intrusion would be highly offensive to a reasonable person and not of legitimate concern to the public. Protection of individual privacy in the criminal context, however, remains underdeveloped due to the judiciary’s outdated treatment of individual privacy. In an era ruled by the smartphone, Jarvis still reached the SCC where it was decided that students maintain a reasonable expectation of privacy from being surreptitiously recorded by their own teacher at school.
Canadians share the same concerns regarding privacy as their 19th century counterparts—to be free of the mental anguish that flows from an abusive invasion of privacy. Indeed, the Digital Age has amplified this concern. Afterall, every person with a smartphone can be the modern-day equivalent of a 19th century tabloid journalist. With just the click of a button, an abusive invasion of privacy can spread like wildfire across social platforms. Yet the criminal law is still in its infancy regarding the protection of individual privacy from other people’s abuse. While the addition of s. 162 to the Criminal Code and Jarvis’ SCC ruling on where one can reasonably expect privacy is a positive incremental step, society’s demand for the protection of individual privacy from abuse remains just that: an unsatisfied demand.
Criminal Code, RSC 1985, s 162(1).  Ibid  R. v. Jarvis, 2019 SCC 10,  1 S.C.R. 488.  Ibid at para 10. Ibid at para 4. Ibid at para 63. R. v. Jarvis, 2017 ONCA 778 at para 94. Ibid at para 111.  Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy” (1890) Vol. 4: No. 5 Harvard Law Review at pages 195-196, online: http://links.jstor.org/sici?sici=0017-811X%2818901215%294%3A5%3C193%3ATRTP%3E2.0.CO%3B2-C  Nick Hopkins and Olivia, “Facebook flooded with 'sextortion' and 'revenge porn', files reveal” (2017), online: https://www.theguardian.com/news/2017/may/22/facebook-flooded-with-sextortion-and-revenge-porn-files-reveal Ibid Jones v. Tsige, 2012 ONCA 32 at para 65. Ibid at para 70.