Privacy

• Author: Robert G. Howell
• Profession: Professor. Faculty of Law University of Victoria British Columbia
• Pages: 177-216

177

CHAPTER 4

PRI VACY

A. PERSPECTIVES OF A DIGITAL AGE

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 Canadian carrier is essentially a

matter of “carriage,” 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 meaning or purpose

of telecommunications carried by it for the 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 Canadian carrier from liability for content provided by

others.3 Additionally, 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 CivilCode 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.

TELECOMMUNICATIONS LAW

178

These situations aside, a Canadian carrier would be responsible

under any federal legislative provisions concerning privacy, 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 ordinary course of operations, however, a

carrier is unlikely to violate 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: the development of Canadian law to accommodate issues

of privacy contextually with digitized transactions and related links

to the analysis of interference with communications equipment, data

and information discussed in Chapter 3, copyright enforcement issues

in MP3 f‌ile sharing and the corresponding balancing of user privacy

interests by Internet Ser vice Providers (ISPs) discussed in Chapter 5,

and private international law presented in Chapter 6. While many as-

pects of privacy law are encompassed within these and other contexts,

the most signif‌icant is the protection of personal information under

the federal Personal Information Protection and Electronic Documents Act

(PIPEDA)7and 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 this dimension are simply identif‌ied in this chapter,

with a warning of the potentially erosive impact to interests in pri-

vacy that digitized media bring to individuals from the facilitation the

afford governments and other organizations to maintain surveillance

and to acquire information concerning individuals. Given the nature

and global scope of digitized media, both national and international

responses will be needed if, indeed, there is the political will 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” [PIPEDA].

Privacy 179

signif‌icant privacy-related measures. Security and law enforcement in-

terests may discourage a response that is too focused on privacy.

Additionally, both dimensions must ref‌lect societal attitudes, which

are ambivalent with respect to the use of technology. Commentator

Jonathan Shaw provides an illustrative example. A person who waves

to a friend and has a photograph taken by a high-resolution camera

of his or her f‌inger prints is likely to call for privacy, but the taking

of f‌inger prints to gain entry to a popular event without delay may

present a preference for the convenience of the technology.8 This may

be especially so with younger people who have embraced digital com-

munications technologies as a “social network” through cellphone

voice and photographic wireless transmissions and the Internet media

of Facebook or MySpace, or other similar blogs, including the practice

termed “sexting,” noted as common among young persons, involving

the sharing of nude self-photographs.9 The result often is voluntary, 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 interests.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://harvard-

magazine.com/2009/09/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 w.ctv.ca/CTVNews /TopStories/20091203/sex-

ting_poll_091203/.

10A 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: http://emergingtechnologies.becta.org.uk/index.

php?section=etn&rid=14823.

11See 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: www.internetnews.com/breakingnews/article.

php/3838231/Obama+Warns+Teens+About+Facebook+Risks.htm.