Privacy, Privacy

Two privacy stories raise interesting issues.

1. Journalistic violation of privacy: PIPEDA s. 7(1)(c) gives an exemption from the rules about collection of personal information for journalistic purposes.

Section 32 of the Data Protection Act (UK), by contrast, provides a journalism exception only if, in addition,

(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c) the data controller reasonably believes that, in all the circumstances, compliance with [the provision being violated] is incompatible with the special purposes [i.e. journalism]

Lord Levenson’s recent report on abuse of press freedoms recommends even stricter controls.

In the light of this, is Canada’s journalism exception demanding enough of those who violate privacy in its name?

2. In U.S. v Stanley, WL 5512987, a court held that there is no reasonable expectation on privacy in wireless signals, so the police could use a device (called a ‘moocher hunter’!) to trace wireless signals, to find out who was trafficking in child pornography using a neighbour’s wireless signal. (A properly warranted search of the neighbour’s computer had turned up nothing, so the question was whether someone else was using the signal for the illegal purpose. Answer: yes. Moocherhunter answer: Stanley.)

Would Canadian law after Tessling (heat sensors), Gomboc (electricity meters) and Patrick (garbage bags) be any different?

The commentary by Orin Kerr (via the Stanley link above) quotes from the decision that Mr Stanley cited in his constitutional defence the US Supreme Court’s equivalent to the Tessling case, Kyllo v. United States, 533 U.S. 27 (2001), which went the other way from Tessling and found that the warrantless use of a heat detector was not permitted. The Stanley court distinguished it. Our courts would not have to take that step, I guess.

Should Mr Stanley have a better defence in Canada against the use of such a device?


  1. I think the corresponding exemption you’re looking for in PIPEDA is 4(2)(c), not 7(1). 7(1) is about collection and doesn’t deal with disclosure.

    In any event, I find the U.K. proposals appalling. If you’re the sort of person who believes in free speech and a free press, the idea of a news organization having to defend itself before a quasi-governmental tribunal for its publishing decisions is frightening.

    Pick any story out of the newspaper where wrongdoing has been uncovered by investigative journalism, and ask yourself how that story might have been different under this sort of legislation, under the chill of oversight. No thanks.

  2. Do privacy interests always have to yield to free speech interests, then? If not, when do they prevail and who decides? (I distinguish privacy interests from reputational interests protected – to some extent – by the law of defamation.)

    I am not a fan of prior administrative or judicial restraint, but is there an after-the-fact sanction available, through a privacy commission or court, to weigh the breach of privacy against some notion of the public interest?

  3. The line between protecting free speech and protecting privacy is a value judgment and its reasonable for different people to have different opinions.

    But I will point out that free speech is a Charter value and privacy (in the non-section 8 sense) is not.

    I don’t much care whether the remedy is after-the-fact sanction or prior restraint. Remedy isn’t the question. The question is whether a journalist should face any sanction solely for revealing personal information.

    Imagine a world where shows like Marketplace or W5 start cutting back on their reporting or deciding they can’t air segments because of the potential for sanctions, that’s what I’m concerned about.