What Canadian law says about smart glasses, and using them in public and semi-public places.

 

Here’s a simple question: Can you legally wear smart glasses and record people in public in Canada?

The short answer is: generally, yes.

But—because this is privacy law—the complete answer is a bit more complicated.

And I think smart glasses are particularly interesting because the technology is challenging some of our social norms about recording. But we need to remember that some of those norms include the ability to photograph and record what happens in public.

Before I went into law school, I collected two history degrees so I often like to think about these things in their historical context. I think we’re seeing a bit of a “moral panic” about smart glasses, and this is not without precedent. In 1888, Kodak introduced the world’s first “compact” camera. They were promoted as taking “candid” photos. Before then, some guy with a huge camera on a tripod wasn’t really sneaking up on people. That led to a real backlash about “Fiendish Kodackers” who would allegedly be lurking in the bushes, just waiting to take your picture.

If they had been banned, a huge amount of creative output would have been lost.

I also think about what happened when phones started to have built-in cameras. There was a general freak-out about privacy, and calls to ban them in certain places. The reality is that we somehow survived.

Smart glasses fit into the same category.

WHAT ARE SMART GLASSES?

What am I talking about? First, when I say “smart glasses,” I’m talking about things like the current generation of Ray-Ban Meta glasses and similar devices.

These look reasonably close to conventional glasses, but they can incorporate cameras, microphones, speakers and computer processing.

For example, the Ray-Ban Meta glasses have a camera and microphones and can take photos and record video with audio. They have a small outward-facing light that is supposed to indicate when a photo or video is being captured.

This is obviously not an entirely new idea.

Google Glass famously raised many of these questions more than a decade ago. I talked about Google Glass in my episode about recording conversations.

But the technology is getting much better and, importantly, much less conspicuous.

A person holding a phone out in front of them is obviously taking a picture or recording something.

Someone wearing glasses is just … wearing glasses.

And I think that difference explains a lot of the discomfort.

START WITH THE ORDINARY RULE FOR PHOTOGRAPHY

But let's start with the law rather than the discomfort.

I've previously done an episode about taking photographs and video in public places in Canada. I’ll link to it below: https://youtu.be/KQJuWrunUVs.

The general rule is pretty straightforward.

If you are lawfully in a public place, you can generally photograph or record what you can see from that public place. There isn't a general rule in Canadian criminal law that says you need somebody's permission before they can appear in a photograph or video taken in public.

That doesn't mean absolutely anything goes. You can't obstruct traffic to get your shot. You can't assault somebody. You can't trespass. You can't interfere with police carrying out their duties.

The only time you really need anyone’s permission is if you’re going to use their image commercially, like in an ad.

And there are important privacy-related exceptions that I'll get to.

But the starting point is that we live portions of our lives in public while other people are allowed to observe us. And generally they're allowed to photograph what they can observe. Smart glasses don't fundamentally change that.

If I can stand on a sidewalk and take a photograph with my Nikon camera, or an iPhone, the fact that the camera is now built into my glasses doesn't ordinarily turn the photograph into something illegal.

That is an important starting point.

BUT IT FEELS DIFFERENT

A hidden camera (or at least one that’s harder to detect) changes things. I think this is where the technology is challenging our norms.

If someone points a DSLR camera at you, you know you're being photographed.

If somebody holds up a phone, you generally know what's happening. Smart glasses make the recording device almost disappear. And that matters socially.

People behave differently when they know they're being recorded. They likely regard concealed or unobtrusive recording as sneaky or rude. It may be confrontational.

But “I don't like being recorded” and “it is illegal to record me” are two very different things.

Do we need a new law because the camera has gotten smaller? I don’t think so.

Cameras have been getting smaller for more than a century.

And there are good reasons why our law generally allows photography in public.

People record demonstrations. They record accidents. They record public officials. They record the police. They record misconduct. They record newsworthy events.

And, of course, most photographs are much more mundane than that. People document their vacations, their families, their pets and whatever they had for lunch. I watch a lot of YouTube videos, and it’s clear that many creators are using them for hands-on videos and demonstrations.

Recording what happens around us has become an ordinary part of modern life.

THEN THERE'S VOYEURISM

But there are also places where recording with smart glasses could become criminal very quickly.

Canada has a voyeurism offence in section 162 of the Criminal Code.

It applies to surreptitious observation or visual recording where the person being observed or recorded is in circumstances giving rise to a reasonable expectation of privacy, combined with one of the additional circumstances set out in the section concerning nudity, sexual activity or a sexual purpose.

The obvious examples are washrooms, changerooms and bedrooms.

I would expect a court would say that a camera that looks like glasses is almost by definition “surreptitious”.

And the Supreme Court of Canada has made it clear that “reasonable expectation of privacy” isn't simply another way of saying “private property.”

That's the important lesson from R. v. Jarvis.

Jarvis was a high-school teacher who secretly recorded female students using a camera concealed in a pen. The recordings were made in common areas of the school.

The Supreme Court held that the students could nevertheless have a reasonable expectation of privacy from that particular kind of recording.

The Court said you have to look at the whole context: where the person was, how the recording was made, whether they knew about it, what was being recorded, the relationship between the people involved, the purpose of the recording and a number of other factors.

That is particularly relevant to smart glasses.

The fact that another person can see you does not necessarily mean they can secretly make any kind of recording of you for any purpose.

In my earlier episode I made essentially the same point: privacy expectations can depend not only on where you are, but on the method and character of the observation.

CIVIL PRIVACY CLAIMS

The criminal law isn't the whole story either. Depending on the province, there can also be civil claims for invasion of privacy. Some provinces have statutory privacy torts. Some common-law provinces recognize causes of action such as intrusion upon seclusion, and courts have continued to develop privacy-related causes of action.

Again, context matters enormously.

It would ordinarily be difficult to argue that simply appearing incidentally in somebody's video as they walk down a public street amounts to a serious invasion of privacy.

But deliberately using inconspicuous technology to intrude into something that really is private can be an entirely different matter.

The question is not simply: “Could somebody see me?” It may also be: “What information were they deliberately capturing? How did they capture it? Where was I? What was I doing? And what was my reasonable expectation of privacy in those particular circumstances?”

Smart glasses make those questions more important, not less important.

PRIVATE PROPERTY IS DIFFERENT

Now let's move from a public sidewalk to a shopping mall. Or a restaurant. Or a grocery store. Or an office. Or a school. Or a hospital.

These may feel like public places because members of the public routinely go into them. But legally, many are private property.

And the owner or lawful occupier of private property gets to establish conditions on your permission to be there.

A restaurant can say no smoking. A store can say no pets. A concert venue can prohibit professional cameras. And a property owner can say: “No smart glasses.” Or: “You can wear them, but you cannot use the camera or recording functions.”

If you've been put on notice of the condition and refuse to comply, the issue can ultimately become one of trespass.

A whole lot of venues are turning their minds to it. At least one dance bar in Toronto has banned them from their premises.

That's exactly the same principle that applies to ordinary photography on private property, which I discussed in my earlier episode.

This is particularly important for places like schools.

A school may have extremely good reasons for regulating recording devices. Some schools in British Columbia have started prohibiting their students from using them on campus, citing both privacy and academic integrity concerns.

An employer may prohibit employees from recording meetings.

A hospital may restrict recording in patient-care areas.

A gym may prohibit smart glasses in changing facilities.

And none of this requires the underlying activity to be criminal.

Property owners and organizations can establish rules that are more restrictive than the Criminal Code.

WHAT IF THE GOVERNMENT BANS THEM?

Things get more complicated when the government gets involved.

Suppose a municipality says: “No smart glasses in municipal parks.” Or a police department says: “No cameras or recording devices anywhere on police property.”

Some are calling for a ban on such devices at public pools and change rooms in British Columbia. These are public places and the rule-maker is a government actor who is subject to the Charter.

A ban creates a Charter issue.

Section 2(b) of the Canadian Charter of Rights and Freedoms protects freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Photography and videography are expressive activities.

Restricting photography is restricting expression. On its face, it is a violation of section 2(b) of the Charter.

I did an entire previous episode about attempts by police departments to prohibit photography on police property. But there is an important qualification. The fact that property is government-owned doesn't automatically mean you have a constitutional right to engage in every expressive activity everywhere on that property.

The Supreme Court has said that when expression takes place on government-owned property, courts look at things like the historical and actual function of the place and whether allowing the expression there is compatible with the values underlying freedom of expression.

A public street is very different from a cabinet meeting room.

So I would be very skeptical of a general government prohibition on wearing or using smart glasses throughout ordinary public spaces. That would potentially prohibit an enormous amount of otherwise lawful photography and recording.

But a narrowly tailored restriction in a particular government facility where confidentiality, security or privacy is genuinely necessary presents a much more complicated Charter analysis.

And even where section 2(b) is infringed, section 1 allows governments to justify reasonable limits prescribed by law where the constitutional test for justification is met.

So context matters there too.

THE REAL ISSUE IS THAT THE TECHNOLOGY IS BECOMING INVISIBLE

And I think that's ultimately what makes smart glasses interesting.

The law is actually fairly familiar.

We know quite a bit about photography.

We know quite a bit about video recording.

We know quite a bit about audio recording.

We know quite a bit about reasonable expectations of privacy.

We know quite a bit about private property owners establishing conditions of entry.

What is new is putting all of those capabilities into something that looks like an ordinary pair of glasses.

The technology is becoming less visible.

And that changes the social signalling that historically accompanied recording.

When someone pointed a camera at you, you knew what they were doing. The signals are changing. It happened with the Kodak camera. It happened with camera phones and it’s happening with smart glasses.

Now you may not know what’s a camera and what’s not.

And I think we're going to spend the next few years negotiating new social norms around that.

Workplaces will create specific policies.

Restaurants and gyms put up signs.

Maybe manufacturers make recording indicators much more obvious. Governments may pressure them to do so.

But we should distinguish those emerging social norms from the underlying law.

Because one of our existing norms is also important:

When we are in genuinely public places, other people can see us.

They can remember what they see. They can write it down. And, subject to important exceptions, they can photograph or record it.

The arrival of a smaller and more convenient camera doesn't make that principle disappear.

One of the problems with smart glasses is similar to smart phones with quality cameras: the idiots who use them. There are idiots who use them to creep on women, and there are idiots who use them to create confrontations for clicks. These idiots are going to get a lot of attention. But not everyone is an idiot.

The technology may be new. The legal principles aren't. And those existing principles, combined with evolving social norms, will hopefully deal with the idiots.