Dash-cam video and the challenges of consent
PIPA requires consent to use cam video
Dash-cams are becoming increasingly common as they become more affordable and easy to use. Many businesses are already using them on fleet vehicles; security companies, couriers, buses and taxis may all find it tempting to use video to document work for clients or to help determine liability in collisions. If the provincial government legalizes ride-sharing services such as Uber or Lyft in BC their drivers will likely also be tempted to install cameras to record goings-on both inside and outside their vehicles.
What these examples have in common is that, as commercial organizations, they are all subject to BC’s Personal Information Protection Act (PIPA), which regulates the collection, use, and disclosure of personal information. Video of individuals inside a vehicle or walking on a sidewalk or crosswalk is the personal information of those individuals and, with a few exceptions, can only be collected with the consent of those individuals. But can people who are just going about their daily business on public streets consent to be filmed by a car-mounted camera as it scoots past them at an intersection? Most likely they can’t.
This isn’t a minor regulatory wrinkle: it means that the use of dash-cams by private sector organizations is, from any practical perspective, likely unlawful in BC.
So what about those few exceptions I mentioned earlier? One is implied consent, which is how video surveillance may be legal in some retail stores. But that implied consent requires that everyone entering the store be notified of the surveillance, typically using a sign, giving them the option to not enter the store. This is obviously not practical for a moving vehicle.
Another exception is for the collection of personal information to be authorized by law, such as by a statute like the BC Passenger Transportation Act, which authorizes taxis to use interior video surveillance by Order of the Passenger Transportation Board.
You’re probably thinking something along the lines of “but this is video of people in a public space, who can’t possibly have an expectation of privacy on a public street.” Surprising to many, PIPA does not have an exception to the requirement for consent where this kind of collection occurs in public. In most instances an organization must have your consent to collect your personal information whether or not that information is publically available.
How does this apply to the many private individuals driving around using dash-cams, or recording video using a smartphone? In BC, if those individuals are acting in a domestic capacity, or are not an “organization” under PIPA, they are not subject to that Act’s privacy protective principles. This means that while your neighbour can record video of you while you’re in your front yard, a courier delivering your mail-order package can’t capture that same scene on a dash cam.
The Information and Privacy Commissioner has released guidelines on the use of Overt Video Surveillance in the Private Sector, available at https://www.oipc.bc.ca/resources/guidance-documents/
If you are concerned that an organization has collected your personal information without your consent you can file a complaint with the Office of the Information and Privacy Commissioner at oipc.bc.ca.
This article was originally published on August 1, 2017, in BarTalk's privacy law issue.
