AuthorRobert G. Howell
ProfessionProfessor. Faculty of Law University of Victoria British Columbia
Historically, the concept of privacy was relatively peripheral to tele-
communications law. The traditional point-to-point media of princi-
pally telephone communications by a Canadi an carr ier is es sentially a
matter of “carri age,” and section 36, Telecommunications Act (1993) pro -
vides: “Except where the [CRTC] approves otherwise, a Canadian car-
rier shall not control the content or inf‌luence the mean ing or purpose
of telecommunications carried by it for t he public.”1 Noted in other
contexts,2 section 36 prohibits a Canadian carrier from interfering with
the content of a communication, but it may also be interpreted to imply
exemption of a Canadia n carrier from liability for content provided by
others.3 Add itionally, other regulatory provisions may be relevant.4
1 Telecommunications Act, S.C. 1993, c. 38, s. 36.
2 See Chapter 2, te xt accompanying note 47.
3 See Chapter 2, te xt accompanying notes 228 –30 and Chapter 5, text accom-
panying note s 259–60 and 261–65, reportin g the CRTC to have purported to
exempt a Canad ian carrier from li ability for defamation or copyr ight infringe-
ment in any communic ation it carries. Such an exe mption may present a
constitution al and jurisdictiona l challenge to the exercise of w hat might be seen
as provinci al jurisdiction (common law tort or Civ il Code del ict) under s. 92(13),
Constitution Ac t, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R .S.C. 1985, App.
II, No. 5, “Property and Civ il Rights in the Prov ince” in respect of defamat ion
and an excess of ju risdiction concerni ng copyright where the posit ion of pro-
viders of the me ans of communication is addre ssed in the Copyright Act, R.S.C.
1985, c. C-42.
4 See, for example, Ch apter 2, text accompanying note s 90–94.
These situations a side, a Canadi an carrier would be responsible
under any federal legislative provisions concerning pr ivacy, as well as
provincial legislation, tort, or delict for privacy violation. In Quebec,
legislative and Civil Code provisions provide signif‌icant privacy protec-
tion, and similarly, four common law provinces have enacted statutory
privacy protection.5 In the ordin ary course of operations, however, a
carrier i s unlikely to v iolate these provisions unless it is a direct party
to the dissemination of the content of any message.6 On the other hand,
point-to-mass broadcast media carry a higher risk of content-related
liability. This would include any recognized privacy interest.
Today, the digitized media of telecommunications has signif‌icantly
increased the scope of privacy protection within telecommunications.
Two broad dimensions are revealed. The f‌irst is the principal focus of
this chapter: t he development of Canadian law to accommod ate issues
of privacy contextually w ith digitized transact ions and related link s
to the analysis of interference with communications equipment, data
and information discussed in Ch apter 3, copyright enforcement issues
in MP3 f‌ile shari ng and the corre sponding balancing of user privacy
interests by Internet Ser vice Providers (ISPs) discussed in Chapter 5,
and private i nternational law presented in Chapter 6. While m any as-
pects of privacy law are encompas sed within t hese and other contexts,
the most signif‌icant is the protection of personal in formation under
the federal Personal Information Protection and Electronic Documents Act
(PIPEDA)7 and equivalents in three provinces, enacted specif‌ically in
response to privacy risks in the private sector collection of data and
especially during Internet telecommunications, though PIPEDA is not
limited to this or any particular medium. The second broad dimension
is still largely political, and any legal and policy response is more specu-
lative. Features of th is dimension are simply identif‌ied in t his chapter,
with a war ning of the potentially erosive impact to interest s in pri-
vacy that digitized media bring to indiv iduals from the facilitation the
afford governments a nd other organizations to maintain surveillance
and to acquire information concerning individuals. Given the n ature
and global scope of digitized media, both national and intern ational
responses will be needed if, indeed, there is t he politica l w ill to take
5 See Civil Code of Quebec, S.Q. 1991, c. 64, arts. 35– 41; and notes 69–72, below in
this chapt er.
6 See, for example, Dominio n Telegraph Company v. Silver (1882), 10 S.C.R. 238,
discus sed in Chapter 5, text accompanyi ng notes 263–65.
7 Personal Informatio n Protection and Electronic Document s Act, S.C. 2000, c. 5,
concerning “P rotection of Personal Informat ion in the Private Sector” [PIPE DA].
Privacy 179
signif‌icant privac y-related measures. Secur ity and law enforcement in-
terests may dis courage a response that is too focused on privacy.
Additionally, both dimensions must ref‌lect societal attitudes, which
are ambivalent with respect to t he use of technology. Commentator
Jonathan Shaw provides an illust rative exa mple. A person who waves
to a friend and has a photograph taken by a high-resolution ca mera
of hi s or her f‌inger prints is likely to call for privacy, but the taking
of f‌inger prints to gain entr y to a popular event without delay may
present a preference for the convenience of the technology.8 This may
be especially so w ith younger people who have embraced digital com-
munications technologies as a “social network” through cellphone
voice and photographic wireless transmi ssions and the Internet media
of Facebook or MySpace, or other simil ar blogs, including t he practice
termed “sexting,” noted as common among young per sons, involving
the sharing of nude self-photographs.9 The result often is voluntar y, ir-
retrievable disclosure of highly personal information. This may lead to
the conclusion that these users do not value the type of privacy protec-
tion that older generations have traditionally sought. Whether such a
conclusion is accurate or not,10 it has led to high-prof‌ile advice to young
people encouraging a protection of their privacy interest s.11
Projections of the plight or otherwise of individual privacy in a
future ref‌lecting the embrace of technologies and related communi-
8 Jonathan Shaw, “Exp osed: The Erosion of Privacy in t he Internet Era” Harvard
Magazine (Septem ber–October 2009), online: Har vard Magazine http://har vard- 09/09/privacy-erosion-in-internet-era.
9 See “U.S. Poll Finds Se xting Common among Young People” CTV News (3
December 200 9), online: CTV ww /TopStories/20091203/sex-
ting_poll_ 091203/.
10 A survey repor ted in the United Kingdom in Septe mber 2009 that 54 percent
of the young people (age eleven to sixt een) wanted advice “about how to retain
privacy and not sh are personal informat ion” and a further 28 percent about
“how to retain secu rity of information.” See Ipsos Mori, Children and Young
People’s Access to Online Content on Mobile D evices, Games Consoles and Porta ble
Media Players, Report prepa red for Ofcom (September 2009), commented on
at Becta Emergi ng Technologies for Le arning, “Half of young pe ople want per-
sonal privac y advice,” online:
php?section=etn&r id=14823.
11 See warni ng given by President Barac k Obama to American school c hildren and
teenagers to be c autious about posting person al information on Facebook and
other blogs in cyb erspace: “Obama Warns Teens about Facebook R isks” Reuters
(9 September 2009), online: ww /brea kingnew s/article.

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