When Google turned on the Street View feature to Google Maps, it created quite a stir. The images provided by Immersive Media included shots of women sunbathing topless (face down), a man scaling an iron fence apparently in a burglary attempt, and marijuana plants growing in a San Francisco Victorian window, among other more mundane images.
As much as the individuals pictured might wish they had not been, in the U.S. Google doesn't have a problem. The U.S. Supreme Court holds that individuals have no reasonable expectation of privacy on the street.
In Canada, however, the situation is different. Jennifer Stoddart, Canada's Federal Privacy Commissioner, recently alerted Google and Immersive Media that Street View very likely violates the country's Personal Information Protection and Electronic Documents Act (PIPEDA), which prohibits commercial use of personal without the individual's consent.
Collected Without Consent
In letters to Google Chief Legal Officer David Drummond and Immersive Media President Myles McGovern, Stoddart explained that her office "considers images of individuals that are sufficiently clear to allow an individual to be identified to be personal within the meaning of PIPEDA."
Because the images in Immersive's GeoImmersive Database -- the source of the images in Google's Street View -- "appear to have been collected largely without the consent and knowledge" of the people pictured, Stoddard said she is "concerned" that the feature violates the Canadian privacy law.
Under PIPEDA, businesses may not collect or disseminate personal information without the person's consent. Even with consent, businesses are constrained to use only information a "reasonable person would consider appropriate under the circumstances," Stoddart explained in her letters. In addition, British Columbia, Alberta, and Quebec have provincial laws that are similar to PIPEDA.
Are Images Personal Information?
While the statutes speak of "personal information," they don't specify whether images are included in that designation, David T.S. Fraser, a Canadian privacy attorney and author of a privacy law blog, said in a telephone interview. "We don't have any case law that strongly suggests one way or another," he said. While the privacy statutes are silent with respect to these issues, "ordinarily, any use of personal information would require consent," he said.
There are, however, court decisions holding that video surveillance images are private information. "It's not a long stretch" to extend those holdings to the image collection and disclosure in Google Street View, he said.
In addition, a recent decision from the Supreme Court of Canada held that two people who were photographed in a public park had a right to sue when their images were used in a promotional poster. "The commercial use of their images gave them a right to sue," Fraser said.
Google's argument would likely be that it is not making direct commercial use of the
images. But, said Fraser, "they are selling ads alongside of them as part of a commercial enterprise." The question of whether indirect commercial use of such images violates Canada's laws has not yet been decided by the courts, Fraser said.
Because Google has not yet launched the feature on Canadian maps, Stoddart's letters serve as notice that the commission is looking at the issue. Neither company has yet responded publicly.