'Jones-ing' for a Solution: Commercial Street Surveillance and Privacy Torts in Canada

Abstract

Commercial street surveillance technologies such as Google's "StreetView" have proved widely popular with Canadians. While they are deployed without discriminatory intent, the anonymous audience nonetheless applies selective scrutiny to the published imagery. Disproportionately directed at women and members of ethnic minority groups, this scrutiny means the risks associated with being subject to street surveillance are not felt in an equal manner. This paper considers the possibility of invasion of privacy actions in tort brought against the commercial service provider as a possible solution. Analysis suggests that Canadian law has evolved in a way such that it is exceedingly difficult to make a claim for "privacy" in tort when the plaintiff is located in public space. This evolution exists in order to ensure that innocuous behaviour not be rendered actionable. Furthermore, conceptual reasons exist to suggest that actions in tort are unlikely to be the best solution to the problems posed by commercial street surveillance. While any individual case of embarrassment or nuisance matters, broader “macro-harms” that impact entire communities reflect perhaps the most serious problem associated with the selective scrutiny of street surveillance imagery. Yet, it seems difficult to justify attaching liability for those harms to the commercial providers. While limits need to be placed on the operation of these street surveillance programmes, it is unlikely that invasion of privacy actions are the most effective way to achieve that goal.

Keywords: privacy, surveillance, tort, gender, StreetView, Google, Ontario, Canada, law, internet