Privacy Rights of Children - LawNow Magazine

Privacy Rights of Children

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Introduction

There is an ever-increasing concern for privacy rights of children. Privacy has many different dimensions and involves many different actors. The Oxford dictionary describes it as: “a state in which one is not observed or disturbed by other people”. Privacy may be sought from the government, business and private individuals. Legislation and common law in Canada recognizes the different dimensions and actors involved in privacy. The international Convention on the Rights of the Child (“Convention”), Canadian Charter of Rights & Freedom (“Charter”), legislation including The Personal Information Protection and Electronic Documents Act (“PIPEDA”), Alberta’s Personal Information Protection Act (“PIPA”), the Privacy Act, Alberta’s Freedom of Information and Protection of Privacy Act (“FOIP”), and actions in tort all protect the privacy rights of children.  In combination, these laws, among other legislation such as the Young Offenders Act and the Youth Criminal Justice Act, directly and indirectly protect minors and their right to privacy. However, unlike the U.S., Canada has no single piece of legislation specifically protecting the privacy rights of children with the exception of the international UN Convention, binding Canada and its provinces.

UN Convention on the Rights of the Child

Alberta has yet to recognize any tort of privacy and lacks legislation on the matter as well.Canada has signed and ratified the UN Convention on the Rights of the Child. Article 16 of the Convention specifically protects children’s privacy. Although Canada is bound by the Convention to protect the privacy rights of children, the enforceability of the law is a process that has to be undertaken by the Government of Canada and its provinces. The international law has to be incorporated into domestic law in order for the international law to be enforceable. This also means when Canada ratifies a convention, it has to ensure that its domestic laws are in accordance with the treaty it is signing to avoid conflict.

The protection of privacy of children  is a very broad provision. It reads as follows: “Children have a right to privacy. The law should protect them from attacks against their way of life, their good name, their families and their homes”.  The Supreme Court of Canada in the 2005 case of R v. R.C. explicitly refers to the Convention and its incorporation into the criminal justice system for youth. It wrote:

“In creating a separate criminal justice system for young persons, Parliament has recognized the heightened vulnerability and reduced maturity of young persons.  In keeping with its international obligations, Parliament has sought as well to extend to young offenders enhanced procedural protections, and to interfere with their personal freedom and privacy as little as possible: see the United Nations Convention on the Rights of the Child… incorporated by reference in the YCJA.”

The Court goes on to to say that it cannot be presumed, as in the case of adult offenders, that “there will be minimal impact on a young person’s privacy and security of the person.”

Canada has signed and ratified the UN Convention on the Rights of the Child. Article 16 of the Convention specifically protects children’s privacy. However, this is not a blanket right. Section 24(2) of the Charter states the evidence still may be admissible if it can be proven that the right to privacy and security under question “would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice”. Thus, there may be a breach of section 8 but evidence breaching section 8 (and the privacy of individuals) may still be admissible if it can be determined that it passes under section 24(2) of the Charter.

Canadian Charter of Rights and Freedoms

The Charter is part of the Constitution. It protects the reasonable expectation of privacy of individuals in Canada from the Government of Canada, its provinces and its agents under section 8, which reads as follows: “Everyone has the right to be secure against unreasonable search and seizure.”  This section applies in investigatory and prosecutorial functions. In the 1984 Supreme Court of Canada case of Hunter v Southam, the Court stated that, in order to conduct searches, there must be reasonable and probable grounds there is evidence for an offence at the premises. (This is qualified by section s. 24(2) of the Charter, which may still permit evidence that is obtained unlawfully and in breach of section 8).

‘Unreasonable’ is a very flexible term, with variation on what it may entail. In the 1998 landmark case R. v. M. (M.R.), the Supreme Court of Canada stated that the reasonable expectation of privacy for students significantly diminishes. The Court stated:

“It is lower for a student attending school than it would be in other circumstances because students know that teachers and school authorities are responsible for providing a safe school environment and maintaining order and discipline in the school.  Students know that this may sometimes require searches of students and their personal effects and the seizure of prohibited items.”

The Court took the following approach for searches by teachers and principals:

  1. A warrant is not essential in order to conduct a search of a student by a school authority.
  2. The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach.
  3. School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school.  Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.
  4. The following may constitute reasonable grounds in this context: information received from one student considered to be credible; information received from more than one student; a teacher’s or principal’s own observations; or any combination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the circumstances existing at the particular school.

The Court also set out the test for whether the search is reasonable.

  1. The first step is to determine whether it can be inferred from the provisions of the relevant Education Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances.  In the school environment such a statutory authorization would be reasonable.
  2. The search itself must be carried out in a reasonable manner.  It should be conducted in a sensitive manner and be minimally intrusive.
  3. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.

The right of privacy on elementary and secondary school campuses is thus compromised, but for reasons of the safety and health of other students.

However, unlike the U.S., Canada has no single piece of legislation specifically protecting the privacy rights of children with the exception of the international UN Convention, binding Canada and its provinces.There is another dimension to search. Social media posts, website comments, text message and recordings are all very prevalent in society today and are very popular among younger generations. The Supreme Court of Canada in the 2017 case of R. v.  Marakah stated, if the “subjective expectation of privacy was objectively reasonable the claimant will have standing to argue that the search was unreasonable”.  The reasonable expectation of privacy is set by the totality of circumstances. In light of that test, the Court found there is a reasonable expectation of privacy in text messages. However, the Court did not extend this to social media posts, online public forums and public chat groups.

Privacy Legislation

The Privacy Act protects privacy of individuals from the federal government and its agencies. It allows an individual to access and correct the information that the Government of Canada holds about them. Alberta’s equivalent is FOIP, for provincial government agencies.

The Office of the Privacy Commissioner of Canada defines privacy as, “personal information is data about an identifiable individual. It is information that on its own or combined with other pieces of data, can identify you as an individual” The federal Personal Information Protection and Electronic Data Act PIPEDA and the Privacy Act both have this as their basic definition.

Another dimension to privacy is the right to privacy from businesses. Many businesses target their audience online. Oftentimes, companies gather, examine and sell a person’s online history, and fine tune their advertisements and products this way. This may compromise an individual’s privacy. Thus, there are laws protecting individuals from the prying eyes of businesses as well.

 

 

The Office of the Privacy Commissioner of Canada conducts its own investigations of businesses related to kids’ privacy and has provided guidance for businesses collecting information on minors. PIPEDA has the goal of protecting individuals’ privacy from businesses engaged in the private sector set up for commercial and for-profit purposes. It also applies to federally regulated businesses, including banks, airlines and telecommunications companies which are incorporated under the federal jurisdiction. PIPEDA “sets the ground rules for how private-sector organizations collect, use, and disclose personal information in the course of for-profit, commercial activities across Canada”.  Alberta’s equivalent is the Personal Information Protection Act (PIPA). It serves to protect provincial private-sector, for profit businesses that are operating only within the borders of Alberta. If the business handles personal information that crosses provincial or national border, PIPEDA applies.

The Office of the Privacy Commissioner of Canada conducts its own investigations of businesses related to kids’ privacy and has provided guidance for businesses collecting information on minors. It states:

“While the Personal Information Protection and Electronic Documents Act (PIPEDA) does not differentiate between adults and youth, the Office of the Privacy Commissioner of Canada (OPC) has consistently viewed personal information relating to youth and children as being particularly sensitive and must be handled accordingly. We have also taken the position that in all but exceptional cases, consent for the collection, use and disclosure of the personal information of children under the age of 13 must be obtained from their parents or guardians.”

Tort of Privacy

There are many instances where one person’s privacy is invaded by another individual. To address privacy concerns between private parties, there is a unique development in tort law in Ontario. There are four tort actions under the umbrella of invasion of privacy or right to privacy as stated in the 2012 Ontario Court of Appeal Jones v Tsige decision. Those are:

  1. intrusion upon the plaintiff’s seclusion or solitude;
  2. public disclosure of embarrassing private facts about the plaintiff;
  3. publicity which places the plaintiff in a false light in the public eye; and
  4. appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The Ontario Court of Appeal set out a test for the first tort, of intrusion upon the plaintiff’s seclusion or solitude, as follows:

“One who intentionally [or recklessly] intrudes, physically or otherwise, upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his [or her] privacy, if the invasion would be highly offensive to a reasonable person.”

The tort is simply based on the intrusion of privacy of the individual. It is irrelevant whether there is any material damage. However, the test does include safeguards. The intrusion into privacy has to be highly offensive from a reasonable person’s perspective. In order to avoid a flood-gate of cases, the Court decided to keep the scope of the tort narrow and applicable to specific matters. The four matters included are:

  • financial or health records;
  • sexual practices and orientation;
  • employment; and
  • diaries or private correspondence

that, viewed objectively on the reasonable person standard, can be described as highly offensive.

In the 1998 landmark case R. v. M. (M.R.), the Supreme Court of Canada stated that the reasonable expectation of privacy for students significantly diminishes. The Ontario Superior Court also recognized the second tort of the public disclosure of embarrassing private facts about the plaintiff in the 2016 case of Jane Doe 464533 v ND (Jane Doe). Other provinces, including British Columbia, Manitoba and Saskatchewan have all addressed this through legislation.  Alberta has yet to recognize any tort of privacy and lacks legislation on the matter. However, this interest may be protected in Alberta by other recognized torts, such as defamation (libel and slander), nuisance, trespass, harassment, breach of confidence, intentional infliction of emotional distress, etc. and these may, in combination, protect the privacy rights of children. The Ontario Court in the 2006 case of Somwar v. McDonald’s Restaurants of Canada Ltd. ruled that these other torts are not adequate and perfectly summarized the need for the tort of privacy.

“With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly) and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an “incremental revision” and logical extension of the existing jurisprudence…”

Conclusion

This is the current landscape of privacy rights of children in Canada. Despite the lack of laws specifically addressing the privacy needs of children, children are protected under legislation and the common law from provincial and federal governments and businesses in Alberta. However, there is still a concern for intrusion on children’s privacy by private parties in Alberta.  To date, other tort claims may protect the privacy rights of children but there is still a gap.  Perhaps Alberta will follow suit of other provinces in time.

Authors:

Khadija Zeeshan
Khadija Zeeshan is a student in the Faculty of Law at the University of Alberta and a member of Pro Bono Students Canada.
 


A Publication of CPLEA