The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Wednesday, January 07, 2009
According to Yahoo! News, a Wisconsin court has held that a person who is voluntarily naked in front of others still has a reasonable expecation not to be videotaped. (See: Wis. court: Nude people still have privacy rights - Yahoo! News.) Unusual case but makes sense to me.
Via Photo Attorney.
Added: I've read the decision and have a bit more information (enough to make me change the title of this blog-post to be a bit more clear.
In this case, the defendant was charged with violating a Wisconsin law that criminalizes recording someone in the nude when they have a reasonable expectation of privacy. The complainant was voluntarily disrobed in front of her then-boyfriend, who had hidden a camera under some laundry. He argued that she had no expecation of privacy as she knew he was able to see her disrobed. The court took a much more context-specific reading of what is a reasonable expecation of privacy.
Thursday, December 20, 2007
I don't think there's much debate that the relationship between a physician and a patient is one where confidentiality and trust are absolutely critical. This is why there's such outrage when a physician takes advantage of this position of trust.
Yahoo! News is running an article about a Chief Resident of General Surgery from an Arizona hospital who took a picture of a patent's tattooed genitals when the patient was sedated. The surgeon apparently was showing the picture around to other doctors, thinking the tattoo "HOT ROD" was funny. It may be funny, but the actions of this physician are appalling and bring the whole profession into disrepute. See: Tattooed privates prove not so private - Yahoo! News.
UPDATE: No HIPAA charges expected: Doctor in penis case likely will avoid federal charges.
Friday, January 26, 2007
The second (that I know of) conviction under Canada's new voyeurism laws took place yesterday in Halifax.
The Daily News: News Former sailor pleads guilty after trying to videotape neighbour
LINDSAY JONES The Daily News
CRIME – A former sailor has pleaded guilty to trying to videotape a woman while she was changing in her own apartment.
In August of 2006 the woman was getting dressed in her walk-in closet when she spotted a video camera in the window pointed towards that part of the room. She was changing in the closet because her window was only partially covered by a blanket.
Karlson Glen Chaulk, who had been in the armed forces for nearly seven years, lived in the apartment above her. The two did not know each other, the court heard.
The woman called police and Chaulk admitted to committing the offence. He asked police if there was any way to make it go away, the court heard. Police found no images on the video camera.
Chaulk has two previous convictions, for impaired driving and possessing narcotics.
The court heard the victim moved from the residence because she no longer felt safe, costing her her damage deposit and moving expenses.
Chaulk told the court he was “truly sorry” for his actions and promised it would never happen again. “I do realize now that I shouldn’t have conducted myself in the way I did with the camera,” he said.
Judge Michael Sherar said not only is the charge sad and juvenile, but also deplorable. He asked Chaulk what he intended when he surreptitiously looked into someone else’s apartment. He also outlined how everyone has the right to privacy in their own home.
Chaulk has since resigned from the Defence Department and plans to move to Alberta tomorrow.
He was sentenced in Halifax provincial court yesterday to 90 days probation, ordered to pay a $500 fine and $450 restitution to the victim, as well as undergo counseling. He must also stay 150 metres from the woman’s home and workplace.
Chaulk is the second person in Canada to be sentenced for voyeurism, since the law was enacted in November 2005. The law makes it illegal to “surreptitiously observe or make a visual recording” for a sexual purpose.
The only other prosecuted case of voyeurism in Canada also took place in the province.
Winston Charles Patriquin of Port Howe, Cumberland Co., pleaded guilty last August to using a video camera to tape a girl in the bathtub.
Technology takes place of peeping Toms: lawyer
A Halifax privacy lawyer says technology is taking the place of the guy lurking outside the window.
David Fraser said what’s traditionally considered trespassing is now occurring digitally, without the physical presence of a perpetrator.
“People can be observed in a number of different contexts,” he said. “Hidden cameras in change rooms in stores. Hidden cameras in bathrooms in hotels.”
Canada’s voyeurism law was enacted in November 2005 to better protect children and other vulnerable victims from harm. The law makes it illegal to “surreptitiously observe or make a visual recording” for a sexual purpose.
Fraser said the law reflects the potential seriousness and intrusiveness of voyeurism. Enacting it was necessary, he says, to keep up with technological advances and the advent of miniature, wireless cameras.
“Thousands of companies sell wireless cameras and it’s pretty plain in the description of their products that they’re selling them for this sort of voyeurism,” he said. “Once this information is in digital form, it’s very easily transmitted.”
— Lindsay Jones
Tuesday, August 29, 2006
Canada's new video voyeurism law is getting its first test after a man in Nova Scotia has pleaded guilty to using a video camera to covertly tape a young child taking a bath. The accused has also pleaded guilty to creating child pornography.
N.S. man pleads guilty to voyeurism:
A Nova Scotia man has pleaded guilty to using a video camera to secretly tape a girl in a bathtub.
During a court appearance in Amherst on Tuesday, Winston Charles Patriquin, 33, from Port Howe, also pleaded guilty to a charge of making child pornography.
Police began investigating in February after someone saw what Patriquin was recording on his video camera.
"Essentially they involved putting up a ladder against the side of a house and using a video camera to film a child in the bathtub," said Crown attorney Craig Botterill.
Patriquin was charged under the new voyeurism section of the Criminal Code, making him the first case in Canada, according to the Crown.
New law makes recording illegal
The law, which was passed in November, makes it illegal to "surreptitiously observe or make a visual recording" for a sexual purpose.
Patriquin also faced charges of accessing and possessing child pornography, but the Crown plans to withdraw them after working out a deal with the defence.
Botterill said that deal will keep a child off the witness stand.
"It's important wherever possible to try to spare a child of having to go through the trauma of testifying in court," he said.
In return for guilty pleas to voyeurism and making child pornography, Patriquin will agree to a 90-day jail sentence.
The deal also calls for two years probation with intensive treatment and counselling. Patriquin will have to supply a DNA sample and his name will be placed on the national sexual offender registry.
Botterill said he considered pushing for a one-year jail sentence. But given there is no precedent for the crime of voyeurism and Patriquin had no criminal record, he decided there was a chance Patriquin would do no jail time at all.
Botterill said the public should know that no child was sexually assaulted, "and in fact the child was unaware that she was being filmed."
Patriquin will be sentenced on Sept. 28.
The relevant section of the criminal code reads:
PART V: SEXUAL OFFENCES, PUBLIC MORALS AND DISORDERLY CONDUCT
162. (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
Definition of “visual recording”
(2) In this section, “visual recording” includes a photographic, film or video recording made by any means.
(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.
Printing, publication, etc., of voyeuristic recordings
(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.
(5) Every one who commits an offence under subsection (1) or (4)(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.
Question of law, motives
(7) For the purposes of subsection (6),(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.
Monday, March 20, 2006
Many who are critical of widespread video surveillance often point to instances where those doing the surveillance use the cameras for purient purposes. Today, The Register is reporting that police in the British community of Tyneside are investigating the leak pictures of participants in Spencer Tunick's mass nude photoshoot that took place last year. The pictures were apparently taken by CCTV operators with pan and zoom capabilities and were made available in local pubs. See: CCTV staff quizzed over nude art shoot footage | The Register.
Tuesday, July 05, 2005
A little while ago, I blogged about a news article from the Morning Call Online. The article was about an arrest that had been made by police in Northampton County in PA, allegedly for invasion of privacy after an teddy bear had been discovered harboring a covert video camera. Tonight, I got a comment on that post that suggested I remove my blog entry:
The Canadian Privacy Law Blog: Beware the bear:
"FYI - never happened. he did not do it. so says pennsylvania law. and that's that. remove the article or i will contact him and have him contact his lawyer, who will then MAKE you remove it.
The comment didn't provide a lot of info, but I did manage to find a later article in the Morning Call saying that the charges had been dropped: mcall.com - Charges dropped in Peeping Tom case.
Thursday, January 06, 2005
This sort of stuff is what makes many people nervous about widespread surveillance cameras in public places. The Register is reporting that two employees entrusted with keeping the streets safe though CCTV have been suspended for using the technology to peep into a woman's apartment:
Council suspends CCTV Peeping Toms | The Register:
"Police are investigating a a trio of municipal 'Peeping Toms' from Sefton, Merseyside who reportedly trained a street safety CCTV camera on a woman's flat in Liverpool's Bootle district, UK tabloid the Sun reports.
The three have been suspended 'pending a full internal investigation into alleged breaches of the council's policies and procedures,' as a Sefton council spokesman put it. Police confirmed that they are 'currently investigating allegations under the Sexual Offences Act 2003 and we are talking to a number of people', although no-one has been arrested.
The triumvirate of alleged snoops work in the Sefton council street safety camera centre, which controls 70 CCTV cameras across Merseyside."
Sunday, December 26, 2004
The US Senate and House have passed the Video Voyeurism Prevention Act of 2004, which has been sent to President Bush for his signature. The law is restricted by the US federal government's limited jurisdiction, so it applies in federal facilities and areas of special federal jurisdiction. It makes it a federal crime to capture an image of an individual's "private area" when the individual has an expectation of privacy. CNN, among others, is running an AP article on the law:
CNN.com - New bill targets some peeping Toms - Dec 9, 2004:
"... The bill, which President Bush is expected to sign, would make it a crime to videotape or photograph the naked or underwear-covered private parts of a person without consent when the person has a reasonable expectation of privacy.
Conviction could lead to a fine of not more than $100,000 or imprisonment for up to one year, or both.
'Upskirting' and 'downblousing'
The measure got voice vote approval in both chambers of Congress -- the House on September 21 and the Senate on Tuesday.
The legislation would apply only in federal jurisdictions, such as federal buildings, national parks or military bases, but it carves out exceptions for law enforcement, intelligence and prison work...."
We've had a bill pending, on and off, to amend the Canadian criminal code to do the same thing. Unfortunately, it has fallen off the order paper at least once (See PIPEDA and Canadian Privacy Law: Article: Canada 'voyeur' bill still on shelf), but was reintroduced as Bill C-2 and is presently before committee. The text of the bill is here and its current status can be found here.
The proposed Canadian law is similar to the US one referred to above, except is also makes it an offence to distribute a recording produced as a result of an offence under subsection (1).
Because the Canadian federal government's criminal law jursidcition is unlimited, the law will apply coast-to-coast in Canada.
Tuesday, October 05, 2004
An anti-voyeur vigiliante took the law -- and a peeping tom -- into her own hands this week in Calgary when a she caught a man videotaping up her skirt at a local mall. The privacy law angle is at the end of the article:
"CALGARY -- A 26-year-old shopper was shocked to find a man secretly filming under her skirt but managed to grab him by the lapels and yell for help. Dorianne Bamber said she was shopping at the North Hill Centre on Tuesday and had stopped to look at Halloween costumes when a man came up and stood behind her.
There are no laws governing the misuse of hidden cameras, although a federal bill that would create a new crime of voyeurism to combat electronic-age peeping Toms has passed first reading in Parliament.
Stephen Jenuth of the Alberta Civil Liberties and Privacy Association, said the penalty for mischief ranges from a fine to six months in jail, although such a severe sentence is unlikely.
Bamber said she's speaking out because she wants other women to be aware this can happen to them."
Sunday, January 11, 2004
The Calgary Sun: Canada 'voyeur' bill still on shelf: Among the pieces of legislation at risk following Parliament's early recess is Bill C-20, which includes provisions to protect people from voyeurs. The Calgary Sun has an article in today's paper about the bill and its fate:
"Sunday, January 11, 2004
Canada 'voyeur' bill still on shelf
By MICHELLE MARK, CALGARY SUN
Amendments to the Criminal Code aimed at protecting innocent people from being exposed -- naked -- on the Internet have fizzled despite a greater misuse of sexually explicit pictures than ever before.
Bill C-20, which died because of an early parliamentary recess last fall and has yet to be brought back to life, addresses proposed voyeurism offences in a day of sexual liberation, digital cameras and easy access to the Internet. "
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