Legality issues raised following leaked Senators video
Posted November 6, 2018 2:35 pm.
This article is more than 5 years old.
VANCOUVER (NEWS 1130) – By now, you’ve likely heard about or watched the video of several players on the Ottawa Senators calling out one of their coaches — the whole thing recorded in an Uber while the team was in Arizona recently.
The footage was posted online but has since been taken down and it’s believed the players didn’t know they were being recorded.
This potential breach of privacy here is a bit of grey area when it comes to laws in Canada, says Daniel Reid with Harper Grey LLP in Vancouver. He says you are, technically, allowed to record someone while they’re in your car but you can’t publish it without their consent.
“I’ll give you an example: you can record someone in Canada if you are a part of the conversation and it’s not criminal. So, if you’re recording a phone call, you don’t have to tell the other person as long as you’re a part of it. There are criminal laws that say you can’t secretly record someone or record conversations that you’re not a part of or not involved in. That means you couldn’t set up a secret camera and record people in your back seat if they’re not talking to you or not involving you in the conversation. You could be criminally charged for that.”
RELATED: ‘Nothing is off the record,’ Leafs coach says of Senators Uber video
The other sticking point, in this case, is the fact the players were using a ride-sharing service and not a regular cab.
“If people can consent [because] they’ll see a camera in the cab and there’s a sign that’s prominently displayed, whereas a hidden camera, that’s where there can potentially be the risk of not only a lawsuit but potentially criminal charges for secretly recording someone without their knowledge or consent if you’re not part of the conversation.”
Even if it’s not criminal, Reid explains you could be sued for your actions. “Here in BC, we have something called the Privacy Act which says that if you invade someone’s privacy, and that could be recording them or publishing that recording online or distributing it, they could potentially sue you for that. They don’t have to show they actually suffered any damage, it’s just in the circumstances where their actions are a violation of your privacy.”
He adds one of the misunderstandings around surrounds being in a person’s car which falls under both private and public property, specifically if you’re giving someone a ride.
“It depends what the purpose of the recording is. Certainly, a recording for a security purpose is one thing and we see that all the time. We see security cameras that are in taxis or at bank machines. So, generally speaking, if you are recording for a valid security purpose and it’s minimally invasive — that’s OK. What’s different is recording someone and then uploading or streaming that online and that’s something the privacy commissioner has said on a number of occasions in British Columbia, that there can potentially be some concerns with, so, recording someone for a security purpose is probably OK, however, uploading that because it’s interesting or newsworthy may not be OK.”
He says laws in B.C. are a little more stringent than in other parts of the country.
“Here in Canada, we tend to have really good privacy protections, particularly in B.C.,” he says. “In B.C., you can sue for breach of privacy. It’s not clear whether you can do that in every province in Canada yet. And some states in the US don’t have those same protections, so privacy laws can be a little bit a patchwork, particularly in the United States.”
Reid doesn’t think we’ve seen any lawsuits in B.C. that have to do with someone being recorded in a cab or car.
He says if a friend, for example, records you and publishes it without your consent you can take legal action.
“The friend could complain to the privacy commissioner and say, ‘You violated my privacy,’ and the Office of the Information and Privacy Commissioner could order you to take the video down or not do that in the future. The friend can also start a lawsuit against you. The friend could say, ‘I had an expectation that this conversation was private and now you’ve shared with a million other people. Perhaps more seriously, you could also face a lawsuit in which you’d have to pay damages for violating your friend’s privacy.”
Late Monday, the Senators released a statement of apology from the players who were in the Uber. The team also defended and stood by the coach who was being ripped apart by those members.
