Cellphone Cameras raise issues

DAVID CANTON - For the London Free Press - July 2, 2005 Read this on Canoe

Although cellphone cameras have been in Canada for more than three years, new questions are arising regarding their use.

Many businesses have considered how cellphone cameras affect them. The result has been numerous bans -- such as in gym club locker-rooms and in places containing sensitive information.

Recently, the legal profession has showed interest in how cellphone cameras may affect their practice and clients.

Cellphone cameras can be a benefit or burden to a lawyer, depending on which side you are on. In an insurance defence case, a lawyer may, under the guise of using a cellphone, take a picture of a plaintiff and use it to question the legitimacy of the alleged injury.

This sort of activity raises consent and privacy issues. The use of personal pictures is governed by the Personal Information Protection and Electronic Documents Act.

A main principle of PIPEDA is consent. The act says that knowledge and consent are required for the collection, use or disclosure of personal information. It also says it is necessary to identify the purpose for which the personal information is being sought.

Based on this, it would seem that taking a picture of a plaintiff without consent and without informing them of the use of it would be contrary to PIPEDA.

However, lawyers involved in a legal proceeding may be exempt from these requirements. It can be argued that by beginning a lawsuit, a plaintiff is implicitly consenting that the defendant can collect any relevant information.

Even without implicit consent, lawyers still may be able to unknowingly snap pictures of the other party. A section of PIPEDA allows the collection of personal information without consent in circumstances where obtaining consent would compromise the availability or accuracy of the information.

There has also been a concern with cellphone camera use in the courtroom. Currently, cellphones are allowed in the courtroom as long as they are turned off. The problem is that the cameras in the phones are sometimes difficult to detect.

The concern is for the confidentiality of people such as undercover officers and child witnesses. There are also the general concerns that accompany media bans. This concern is heightened with the recent introduction of cellphones that have the ability to shoot video clips.

Not much has been done about cellphone cameras in the legal profession in Canada. Many courts in the U.S. have banned all cellphone cameras in the courthouse, but this ban has not crossed the border

GeneralDavid Canton