In an interesting judgment handed down on February 14 – Queen v Jarvis – the Supreme Court of Canada engaged in a detailed discussion of what constitutes a “reasonable expectation of privacy.” The facts in Jarvis were simple. The accused was a schoolteacher, who was caught while surreptitiously taking videos of (primarily) female students, within the school premises, through a pen-camera. The videos focused upon the students’ faces, upper bodies, and breasts. The accused was charged with the offence of voyeurism. The relevant part of the statute had two elements: it penalised observing or making a recording of a person in circumstances that gave rise to a reasonable expectation of privacy, if that was done for a sexual purpose. The courts below were united in affirming that the second element existed, but split on the question of whether students “engaged in ordinary school-related activities in common areas of the school” had a reasonable expectation of privacy within the meaning of the statute. The Supreme Court, therefore, was tasked only with answering this question, which it did in the affirmative.
The significance of the Canadian Supreme Court’s judgment lies in the fact that the phrase “reasonable expectation of privacy” has attained near-universal currency, but its precise interpretation – and therefore, the scope and limitations of the right to privacy itself – remains disputed. It remains an open question whether a “reasonable expectation of privacy” turns primarily on an individual’s subjective expectations or whether those expectations are “objectively” reasonable – or some combination of both. And what constitutes a “reasonable” expectation of privacy? Does it depend upon social norms? Constitutional principles? Is it a function of the space a person is in – i.e., would it be unreasonable to expect privacy in what we understand as “public spaces”? These questions go to the heart of how we conceptualise privacy, and were therefore central to the Canadian Supreme Court’s analysis.
Counsel for the accused argued that “the common areas of the school” were quintessentially “public spaces”, where the students could not have reasonably expected to be free from being observed or watched, especially when the observers were other students, teachers, or anyone who had general access to those spaces. In other words, a reasonable expectation of privacy could arise when an individual was in a space where she did not expect to be observed by anyone (such as a home), or where she was observed by someone other than people who had access to those spaces (such as, for example, a trespasser in the school), or if the observation or recording was of a body part that she did not expect would be the subject of observation (such as, for example, body parts normally covered by the school uniform). (paragraph 25) In other words, the reasonable expectation of privacy depended upon “the physical features of the space in which a person is located and the degree of control the person has over who may obtain visual access to her in the space.” (paragraph 26) This heavily spatial understanding of privacy has its roots, of course, in American Fourth Amendment jurisprudence, including the case that gave birth to the phrase “reasonable expectation of privacy.”
The Majority View
The Majority of the Court rejected this approach as unduly narrow. The Majority began its analysis by noting that there existed a reasonable expectation of privacy in circumstances where “a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” (paragraph 28) This was not an “all-or-nothing” approach but a contextual enquiry, which required taking into account the location the person was in, the nature of the observation/recording (i.e., how intrusive it was), whether there was consent to being recorded, the manner in which it was done, its purpose, the subject matter, the relationship between the two parties, any background rules, and so on (paragraph 29). Consequently, as the Court observed. “a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others.” (paragraph 37)
The Majority cited a number of examples to drive home the point: a person relaxing in a public park may reasonably expect to be incidentally captured in the background of someone else’s photograph, but would “retain an expectation that no one would use a telephoto lens to take photos up her skirt.” (paragraph 40) Similarly, “the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities.” (paragraph 62)
This contextual enquiry, the Majority stressed, was particularly important in order to cope with the evolving use of technology, and its impact on privacy interests. In particular, the evolution of technology that made it easier for government or private parties to “glean, store and disseminate information about us” (paragraph 63), did not therefore imply that “our reasonable expectations of privacy will correspondingly shrink.” (paragraph 63) And this contextual enquiry, further, had to be understood in light of the interests that a right to privacy sought to secure: in this context, for example, the right of individuals to “determine for themselves when, how, and to what extent information about them is communicated to others.” (paragraph 66)
A combination of these factors led the Majority to conclude, therefore:
“… “reasonable expectation of privacy” is a normative rather than a descriptive standard … [and therefore] the question of whether a person claiming the protection of s. 8 had such an expectation cannot be answered by falling back on a “risk analysis” — that is, by reducing the inquiry to whether the person put themselves at risk of the intrusion they experienced … whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable.” (paragraph 68)
Applying these principles, the Majority was easily able to find that the accused had breached the law. School students in common areas of a school may not have had a reasonable expectation not to be observed, or not to be recorded by security cameras, but they did have a reasonable expectation not to be recorded by other individuals for sexual gratification, especially when the recording was of intimate or sexualised body parts. The conviction, therefore, was affirmed.
The combined elements of the Majority holding – the delinking of privacy from space, the focus on contextualisation, the insistence that the “reasonableness” is a normative (not descriptive) enquiry, and the observation that “reasonableness” had to be determined within the framework of the individual right to control information about oneself – represent a valuable addition to global privacy jurisprudence.
In particular, the Majority’s sensitivity to the interface between privacy and evolving technologies is particularly important. To understand why – especially in the Indian context – take the example (of course!) of the Aadhaar case. An argument that was made – both in Court and in the media – went something along the lines of: “if people happily give up their biometric information to immigration authorities at the border or their personal information to Google or Facebook, the privacy interest in such information must be very weak or attenuated.” The Canadian Supreme Court’s contextual analysis demonstrates that this framing itself is fundamentally flawed, because it takes privacy interests as all-or-nothing, instead of context-dependent. It is entirely consistent for an individual to be willing to give up their biometric information at Immigration to an entity that – apart from stamping visas, has little other control over the individual’s life – while remaining unwilling to have it stored in a centralised information database that is then put to use across a number of critical domains, from banking to paying tax (in an abstract way, it is like the distinction in this case between mere observation, and a recording, which the Court measured in the language of intrusiveness). The point is not that because we easily give up personal information to Google, that personal information has lost its value, or that our claim to sanctity of personal information has become weakened. The issue turns, rather, on the manner or nature in which control over personal information is relinquished to an entity such as Google, on the one hand, and when it is commandeered by the State for the purposes of databasing, on the other. A contextual analysis demands, in other words, that each instance be taken on its own terms, and examined on its own merits, on the touchstone of the factors set out by the Canadian Supreme Court.
As I have discussed previously, the “reasonable expectation of privacy” standard was adopted by the Majority judgment in Aadhaar, and done so entirely acontextually. Indeed, the Aadhaar Majority made exactly the error that the Canadian Supreme Court warned against: by observing that there were other statutes that required demographic and biometric information to be yielded up to the State, the Majority then concluded that the privacy interest in biometric and demographic information was weak and attenuated. The Canadian Supreme Court’s judgment demonstrates, however, how out of step the Aadhaar Majority is with contemporary global privacy jurisprudence.
The Concurring Opinion
Justice Rowe delivered a concurring opinion for himself and three other judges. While arriving at the same conclusion as the Majority, he took issue with the Majority’s use of Section 8 of the Canadian Charter to interpret the anti-voyeurism statute. That does not concern us here. However, there is another fascinating aspect to this opinion. Agreeing that the question of what constituted a “reasonable expectation of privacy” was a normative one, Rowe J. noted that:
“Privacy” defies a singular definition. It is a protean concept given content from the circumstances to which it is applied. But the privacy interest engaged by s. 162(1) is not so amorphous as to defy sufficient certainty and stability to meet the requirements of the criminal law. The phrase “circumstances that give rise to a reasonable expectation of privacy” in the context of the sexual offence of voyeurism is meant to protect a privacy interest in one’s image against observations or recordings that are, first, surreptitious and, second, objectively sexual in content or purpose. This privacy interest itself, where it is substantially and not trivially engaged (e.g. by merely uncouth or ill-mannered behavior), is founded on the twin interests of the protection of sexual integrity and the autonomy to control one’s personal visual information. (paragraph 128)
What is important about this paragraph is that it defines “reasonableness” not in terms of social norms, but in terms if constitutional values such as sexual integrity and autonomy (although here, in terms of Parliamentary intent behind introducing the voyeurism section). Rowe J., in other words, clarified and further elaborated upon the Majority’s more surface-level treatment of how the framework of constitutional interests shaped and gave meaning to “reasonableness.” Consequently:
In brief, an infringement of one’s privacy interest under s. 162(1) can only be sustained if that individual is recorded or observed in a way that both causes them to lose control over their image; and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the voyeurism offence: “the state’s interest in protecting the privacy of individual citizens and its interest in preventing sexual exploitation of its citizens coalesce where the breach of privacy also involves a breach of the citizen’s sexual or physical integrity.” (paragraph 133)
The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy … privacy is the ability to control what is known or observed about oneself. An infringement of privacy occurs when that which is unknown/unobserved becomes known/observed without the person having put this information forward. These perspectives provide a framework inclusive of location as well as personal dignity: they identify an essential privacy interest that a person retains even when in a public place. (paragraphs 135 – 136)
The striking thing about this analysis is how closely it mirrors Chandrachud J.’s articulation of the “reasonable expectation of privacy” test in Puttaswamy. Chandrachud J. had likewise insisted that “reasonableness” had to be adjudicated not in terms of social norms, but in terms of constitutional values. In paragraph 169 of his plurality judgment, he expressly stated that “on an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone.” It was this insight that formed the basis of the disagreement, in Aadhaar, between the Majority judgment and Chandrachud J.’s dissenting opinion: the Majority elected to go back to the old formulation of understanding “reasonableness” as what “society” considers to be reasonable, thus allowing it – in the manner described above – to dismiss the strength and intensity of the privacy interest in biometric and demographic information. On the other hand, it was the understanding of “reasonableness” in the language of constitutional values that formed a major plank of Chandrachud J.’s dissent.
Queen v Jarvis marks the latest attempt by a constitutional court to grapple with the interface between a world in which technology has made collection, storage, and retrieval of information almost costless, and the right to privacy. The Canadian Supreme Court has offered up a nuanced understanding of this interface, providing us with the conceptual framework and the analytical tools to apply it to the more complex situations that we shall face in the future. There is also an interesting conversation between Jarvis and Puttaswamy (Privacy) on the question of how we ascertain the “reasonable expectation of privacy.” The Aadhaar judgment marked a rollback of this progressive understanding, and it remains to be seen what the future holds in this regard.