November 2, 2008 by Iwona Ganczak
What probably started as a silly prank could turn into criminal charges of personation against a high school student from Brandon, Manitoba, who set up a phony Facebook profile in his teacher’s name that included the teacher’s photo and biographical details.1 Although in the end, these criminal charges will probably be nothing more than a big scare, the incident nonetheless implores Canadians to critically look at the state of our privacy laws and their effectiveness in protecting our privacy and identity in virtual networks.
From this instance alone, we learn that internet users cannot rely on protection from social networking sites like Facebook, that are not equipped with tools to detect fake profiles, cases of impersonations and prevent access to personal information by third parties.2 Indeed, recently Facebook “has been under scrutiny [...] for lax security with its applications feature” that allows third parties access to members’ personal information.3 Considering such easy venues for on-line abuse, the legislators are implored to acknowledge the internet’s potency for crime and the need to protect individuals’ privacy in cyber space.
Thus, the question is what are Canadian legislators doing to protect privacy and personality rights of its citizens on the internet? Sadly, current privacy laws do not respond to the challenges of cyber industries as existing legislations barely protect one’s privacy in the real life. Namely, on a federal level there are statutes such as the Privacy Act that oversee use of personal information by government agencies, and the Personal Information Protection and Electronic Documents Act (PIPEDA) that ensures protection of personal information in the context of its use by the private sector. 4 Also, there are various privacy statues that offer similar protection on a provincial level.5 Other statues, such as the Copyright Act, that directly or indirectly deal with issues of privacy or protection of identity, are more concerned with safeguarding commercial value of one’s work than with protection of one’s privacy, personality, or identity per se.
The Facebook incident reminds those Canadians who have an on-line presence that the current state of Canadian law is not on par with technological advancements of the cyber-age when it comes to protection of their privacy. Sadly, it seems that in cases like this one, we are left with tort of “appropriation of personality”6 or, if the nature of abuse of one’s privacy is “criminal in content” (as impersonation alone will not suffice), we could invoke protection of criminal law.7 Yet, do we really have to wait until the problem has tragic consequences as seen in a case of the Missouri teen Megan Meier?8 Instead, Canadian legislators could take inspiration from the UK decision in Firsht v Readman that has expanded the definition of privacy to include individuals’ virtual presence.
1 Patrick White, “Teen’s Facebook charge may set legal precedent” Globe and Mail (6 May 2008), online: Globe and Mail http://www.theglobeandmail.com/servlet/story/RTGAM.20080506.wlfacebook06/BNStory/PersonalTech
2 “Facebook Principles”, online: Facebook http://www.new.facebook.com/policy.php
3 Kristen Yates, ” Privacy in Facebook apps-the risk of the SuperPoke” Privacy Commissioner of Canada (7 May, 2008), online: Privacy Commissioner Canada http://blog.privcom.gc.ca/index.php/2008/05/07/privacy-in-facebook-apps-the-risk-of-the-superpoke
4 “Privacy Legislation in Canada” Office of Privacy Commissioner of Canada (October 2004), online: Office of Privacy Commissioner of Canada http://www.privcom.gc.ca/fs-fi/02_05_d_15_e.asp
5 British Columbia- Privacy Act R.S.B.C. 1996 c.373; Manitoba-The Privacy Act R.S.M. 1987 c.P125; Saskatchewan- The Privacy Act R.S.S. 1978 c.P-24
Newfoundland- The Privacy Act R.S.Nfld. 1990 c.P-22,
6 Allan M. Linden, Lewis N. Klar & Bruce Feldhusen, Canadian Tort Law, 12th ed. (Canada: LexisNexis, 2004) at 95.
7 Supra note 1.
8 Judith Kirkpatrick, “Who owns your profile – two recent cases on social networking sites” Naked Law (13, August, 2008), online: Naked Law http://www.boston.com/business/technology/articles/2007/11/26/girls_suicide_after_online_chats_leaves_a_town_in_shock Mr. Firsht successfully sued for defamation and libel on Facebook by his ex-friend, Mr. Readman. He was awarded £22,000 in damages, that included aggravated damages.