Drone pilots need to know what privacy laws apply to their operations and, unfortunately, the government of Canada isn’t giving them the straight goods. What law applies varies significantly depending on whether you’re taking images using an uncrewed aerial vehicle for a government agency, for a business or just for yourself. I’ll go through all those in this video, as well as talk about general privacy-related laws that apply to everyone.
I’m a recreational drone operator. I’ve advised other operators and have experience with investigations by Transport Canada related to UAV activities. I’ve been invited to speak on this topic at various drone expos and to media lawyers. What I’m about to talk about is applicable to Canada only. The law may be similar in other places, but I only practice Canadian law.
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I recently happened upon some guidance on privacy for drone pilots put out by Transport Canada that was incorrect in a number of ways. This discussion is intended to provide some general guidance on what privacy-specific laws apply and how they apply to people who operate uncrewed aerial vehicles. Don’t take this as legal advice, it is intended to be educational. If you have a question about your specific circumstances, you should talk to a lawyer who knows this area well.
We have a mess of general privacy laws in Canada. Whether any of them apply to you depends on who you are and what you’re doing. There are laws that apply to government institutions and public bodies, and of course their employees in the course of their employment. Examples would be the federal Privacy Act or the Ontario Freedom of Information and Protection of Privacy Act.
There are laws that apply to the private sector, but generally businesses only. Examples would be the federal Personal Information Protection and Electronic Documents Act or the Alberta Personal Information Protection Act.
If you are working for a government in Canada, you can only collect personal information – including images of recognizable individuals, license plates and the like – if it is necessary for a legitimate operating program authorized by law. Anything beyond that will require the specific consent of the individual, though these laws are generally not consent based.
If you are taking footage for a commercial operation, our commercial privacy laws apply and all of them require consent for the collection, use and disclosure of personal information. You would have to get individual consent from each person that is recognizable in your footage.
If you are recording video and taking photos for your own personal, non-commercial purposes, then you are not subject to any of these general privacy laws. Consent is not generally required if you are recording in a public place or a place that is visible from a public place. And the airspace above nuisance height is a public place. That doesn’t mean that some other laws DO NOT apply, but it depends on the circumstances.
Here’s the general rule: for recreational purposes, you can take photos in a public place or record video on public property without any legal consequences. That doesn’t always mean you should, but you generally can. You can also photograph or record any place or thing that is visible from a public place, which would include private property or from the air as long as you yourself are not trespassing.
There is nothing in our criminal law that makes it illegal to take photos or video in a public place or from the air. Other general laws are going to apply. You can’t be a nuisance, and you can’t damage property and you can’t obstruct the police when they are carrying out their duties. You still have to follow whatever aviation rules apply to your mode of flight. Short of that, you can generally fly in a public place and take photos of everything and everyone you see.
In fact, you have a Charter right to take photos or record video. The right to freedom of expression protected in section 2(b) of the Charter also protects your right to collect information. Photography and videography are inherently expressive activities and are thus Charter-protected. Any limitation in law on that right would have to be justified under s. 1 of the Charter and any sort of blanket “no drone photography” law would not be justifiable.
Exceptions - voyeurism
That said, there is a crime of voyeurism that has a few nuances and can apply in public or quasi-public places. It was added to the Criminal Code relatively recently.
It involves surreptitiously observing or recording a person where there is a reasonable expectation of privacy. It has to be surreptitious and there has to be a reasonable expectation of privacy.
Paragraph (a) makes it an offence to observe or record in a place in which a person can reasonably be expected to be nude … or to be engaged in explicit sexual activity.
Paragraph (b) makes it an offence where the recording or observing is done for the purpose of observing or recording a person in such a state or engaged in such an activity.
Paragraph (c) covers a broader range of observation or recording, but where it is done for a sexual purpose.
People should be aware that the courts have held you can have a reasonable expectation of privacy in a relatively public place and that the expectation of privacy can vary according to the method of observation. For example, you may not have much of an expectation of privacy with regard to being observed by someone at eye level, but you may have a protected expectation of privacy from being observed or recorded up a person’s dress or from above to look down their top. Using a small, quiet drone at a nude or clothing optional beach, for example, may trigger paragraph (a). Certainly using a drone to look in a bedroom or bathroom window would trigger that.
One of the leading cases on this is called R v Jarvis.
The accused was a teacher at a high school. He used a camera concealed inside a pen to make surreptitious video recordings of female students while they were engaged in ordinary school-related activities in common areas of the school. Most of the videos focused on the faces, upper bodies and breasts of female students. The students were not aware that they were being recorded. Of course, they did not consent to the recordings. A school board policy in effect at the relevant time prohibited the type of conduct engaged in by the accused. There were other official surveillance cameras in the school hallways.
The court said:
“Given ordinary expectations regarding video surveillance in places such as schools, the students would have reasonably expected that they would be captured incidentally by security cameras in various locations at the school and that this footage of them could be viewed or reviewed by authorized persons for purposes related to safety and the protection of property. It does not follow from this that they would have reasonably expected that they would also be recorded at close range with a hidden camera, let alone by a teacher for the teacher’s purely private purposes (an issue to which I will return later in these reasons). In part due to the technology used to make them, the videos made by Mr. Jarvis are far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment.”
So while the students should have expected to be incidentally observed by the school’s cameras, that did not ultimately affect their expectation of privacy where a teacher with a hidden camera was concerned. He was convicted of voyeurism.
I can imagine many scenarios in which a drone is “far more intrusive than casual observation”, and could trigger the crime of voyeurism, even in a public place.
Another key element in the voyeurism offence is that it has to be surreptitious. In Jarvis, the camera was disguised in a pen. There is a case from Ontario called R. v. Lebenfish, in which a person was charged with voyeurism after he was observed taking photos, mainly of women, at a nude beach in Toronto. He was acquitted because he did not make any effort to hide what he was doing. The court also found that the other beach-goers did not have a reasonable expectation of privacy. The court did note that he wasn’t using a long zoom lens or other form of photographic enhancement.
Sneakily taking photos from a drone could be the offence of voyeurism.
In Lebenfish, the accused was also charged with mischief. Specifically, it was alleged he committed mischief “by willfully interfering with the lawful enjoyment without legal justification of property,” namely, the beach.
The court found that he did not interfere with the lawful enjoyment of the beach, but also noted that the answer may have been different if there were signs posted saying no photography or if there had been a municipal by-law prohibiting photography at the beach. If photography was prohibited, then part of the enjoyment of the beach would be that it was camera free.
One thing that is worth nothing is that the law doesn’t offer any special protection for children. It is not illegal to take photos of kids in a public place. It is certainly creepy and concerning, but likely not illegal in and of itself.
Privacy laws
What about other kinds of laws? We have privacy laws to think about. The ones I deal with most often regulate what businesses can do. An individual taking photos for personal purposes is not a business. And hiring a commercial UAV operator to film your wedding would not make it commercial.
And just to be clear, they have carve-outs for personal use and artistic use. Here’s what the Personal Information Protection and Electronic Documents Act says:
(2) This Part does not apply to
(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose; or
(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.
The other provincial general privacy laws in Alberta and British Columbia have similar exclusions.
Privacy torts
So what about the risk of being sued for damages for invasion of privacy? That’s not likely either if what you are filming is visible to the public.
In most common law provinces, you can sue or be sued for “intrusion upon seclusion”.
It is, in summary “an intentional or reckless intrusion, without lawful justification, into the plaintiff's private affairs or concerns that would be highly offensive to a reasonable person.”
If you poke into someone’s private life in a way that would be highly offensive, harm and damages are presumed.
While it’s not very drone specific, there is a case from Ontario called Vanderveen v Waterbridge Media Inc., where a woman who was filmed jogging in a public place found herself in an advertisement. Only two seconds of footage was used.
She sued and won for “intrusion upon seclusion” and “appropriation of personality”. The analysis is a bit scant on the point, but much of the court’s decision seems to turn on the fact that the woman’s image ended up in an advertisement. The court does not specifically say that simply capturing her image was unlawful, but generally combines it with the intentional capture and use in a commercial.
You can also be sued for public disclosure of private facts, which also has to engage someone’s private life and be highly offensive to a reasonable person. This tort also requires that whatever is captured is not of legitimate interest to the public. That part would exclude most journalists who are using a drone for legitimate reporting.
It is hard to see how taking photographs or video from the ground in a public place would engage someone’s private and intimate life, and be highly offensive to a reasonable person. But I can imagine a number of scenarios over private property where it could be engaged.
A third privacy tort that I’ve been asked about in the privacy context is “appropriation of personality”. This is where you take someone’s name, likeness, voice or other characteristic of a person and use it for uncompensated commercial gain. Easy examples would be taking a picture of Wayne Gretzky and putting it in an ad, suggesting some sort of endorsement. Or even someone who looks like him.
As I mentioned, the case of Vanderveen v Waterbridge Media Inc. also addresses appropriation of personality. Where the woman was in a public place and her image captured there was used in an ad, she was successful but was entitled to only $100 in damages for appropriation.
Some provinces have what are called statutory torts of invasion of privacy.
Here is the gist of the British Columbia Privacy Act.
1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.
Note the violation has to be without a claim of right or legitimate justification.
It then goes on and says …
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.
Note it specifically refers to eavesdropping and surveillance in subsection (4), which reads:
(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.
Again, it is hard to see how obviously taking photographs or video in a public place would engage this tort, but it could be engaged if one were someone of it was over someone’s home. But it really would depend on what is going on below and what is captured.
Private property but public places
Regularly, we go to places where the public is generally invited, but it is technically private property. This can also include what we often think of as being “public property”, but it is owned by someone else. Think of a park, which is owned by a municipality. People or organisations that own property can put conditions on entry to that property. One of those conditions may be “no photography” or “no drone flying”. And if you exceed or violate the conditions of your invitation, you could then be trespassing. The property owner would be within their rights to ask you to leave under provincial trespassing statutes. In some provinces, it may be a provincial summary offence.
It must be noted that the owner of the property does not own the airspace. If you fly low enough to interfere with the owner’s use of the property, you may be engaged in nuisance. But the owner or occupier of the property would have to put you on notice that photography is prohibited on the premises, and you’d have to physically be on the property.
Requests to delete photos
Finally, I’m sometimes asked if you can be required to delete photos or videos you have taken. The answer is a resounding no. No private individual or company can require you to delete any photos.
So what are the takeaways?
If you are taking UAV images for a government agency, a public body or law enforcement, you MUST have a legitimate purpose that is authorized by law and the collection of someone’s image or their personal information has to be proportionate and necessary.
If you are taking UAV images for a commercial or business purpose, you need to have knowledgeable, informed consent from anyone whose image may be captured. If they’re just in a crowd – like at an event – signage may be sufficient. If you’re going to use their likeness in an ad, you need to have their consent and, I would suggest, a signed release.
If you are taking UAV images for your own personal, recreational, artistic or journalistic purposes, you are not subject to any of these general privacy statutes.
Everyone flying and taking images need to be mindful of the voyeurism offense and the privacy torts. Don’t intrude into anyone’s private or intimate life. Stay away from the windows of people’s homes and clothing optional beaches. Being respectful of others is not a legal rule, but it will help decrease the likelihood of liability for invasion of privacy.
And remember, all of this is in addition to the rules set out in the Canadian aviation regulations.
