Legal Research

Audio, Visual: Differing Privacy?

By Simon Fodden

Mark Liberman raised an interesting question on the Language Log yesterday: Why is it, he wonders, that “the laws and practices dealing with the recording of human interactions seem to be so different for video compared to audio?” We penalize recordings of conversations without proper consent but think nothing of videoing millions of interactions daily.

Here in Canada, too, Criminal Code provisions concerning privacy seem directed at speech. Section 184. (1) provides that:

Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

And while this speaks of a “private communication,” the definition of that is:

any oral communication, or any telecommunication, that is made . . . under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it

There are a number of answers to Liberman’s question, I suppose. One would be the observation that when it comes to privacy our societies are concerned about “communications,” rather than, more broadly, interactions; it is the former that have political or other substantial content, we assume. It is the privacy of our information rather than our “selves” that is important to us, it seems. Here, Liberman points out that sign language (e.g. ASL) would not be covered by provisions such as our s.184, at least, not without some creative interpretation.

Another answer would be one Liberman suggests himself, which is that “wiretapping” and the rules surrounding it, came into existence before we imagined the ubiquity of CCTV. Our privacy laws haven’t yet caught up with the times — and may never get there, given the supposed importance of these video cameras for the prevention of crime or the apprehension of perpetrators of crime.

All this is not to say that there aren’t means in various provincial or federal acts that could be found to provide some protection against “e-peeping,” as it were. But it is interesting to observe in a general way our bias in favour of the aural/oral when it comes to privacy.

Full post as published by Slaw.ca on February 28, 2010 (boomark / email).