David T.S. Fraser muses on the privacy law issues raised by photographing or filming individuals in public places:
It’s an issue that has come up in all the discussions about Google Street View and other street imaging products out there on the ‘net. … Obviously, taking photos of people raises privacy issues but I don’t have much of a problem when photos are taken in public places. People simply have diminished expectations of privacy on a public street … when the images are being taken primarily of places and the people are incidental, I don’t think this is what privacy laws were designed to protect us against.
The matter can be of particular significance when filming movie and television projects in public spaces where identifiable individuals (who are not hired performers or extras) are clearly depicted in the background. The traditional approach counsels getting all identifiable individuals to sign a release (and, generally, preventing people who don’t sign a release from appearing on camera); failing that, the posting of clearly-marked signs advising pedestrians that they are entering a filming location where they may be photographed can be an acceptable alternative.
Fraser points to Section 4(2) of the primary federal privacy statute, the Personal Information Protection and Electronic Documents Act (PIPEDA), which excludes from the application of PIPEDA uses of personal information for “journalistic, artistic or literary purposes”. However, as he notes in the comments, even if PIPEDA does not apply, there are still common law “appropriation of personality” tort concerns (for a discussion, see, eg, Robert G. Howell, “Publicity Rights in the Common Law Provinces of Canada” 18 Loyola of Los Angeles Entertainment Law Journal 487) and also invasion of privacy tort concerns. To that we can add, at least in the Province of Quebec, concerns arising under the Quebec Charter of Human Rights and Freedoms, as outlined in the Supreme Court of Canada decision in Aubry c. Éditions Vice‑Versa, [1998] 1 SCR 591, wherein the Court held that an individual’s right of privacy was violated by the publication of a photograph of the individual when she was seated on the steps of a public library.
