In this past article we discovered that the spy pen is in fact an acceptable surveillance device in the United States of America. However, a few of you have written in inquiring as to the legal status of such gadgets within the borders of the Great White North.
In order to answer this question, we must look at the Personal Information Protection and Electronic Documents Act (PIPEDA) which came into full effect in January of 2004. It essentially states that in situations with a commercial or business intent, a persons consent needs to be freely given prior to audio or video recording.
This can be done orally, in writing or be implicit in nature (surveillance camera sign postage.) There are specifics with regard to PIPEDA that are lawfully required to be obliged, however as stated above this is in the context of commercial or business intent. In our circumstance, that being in the capacity of home and business security, usage by Privates Investigators or, more commonly, personal use, our concern falls within a different set of rules.
If you wish to record an audio interaction for non-commercial or a non-business related purpose, the consent of one party must be freely given. This can include yourself if you are a part of the dialog. So, in terms of utilizing the audio recording ability of a pen camera in Canada, you or the individual responsible for the device must be aware it is recording, no one else need know.
Most of you of course wish to know about Canadian laws regarding video recording with spy pens. Canada a few years ago impemented a video voyeurism law which essentially states that it is NOT legal to obtain video recordings of individuals in areas where there is, “a reasonable expectation to privacy.” This includes areas where an individual may be nude or where sexual activity is or may take place. So, what does this mean? No taking covert video in bathrooms, change-rooms, bedrooms or other non-public places. Outside, your own home, stores, fitness centers, malls, etc, all fall within the realm of being legal.
In summation with regard to the use of a pen camera in Canada, if your intent is not based in commercial interest, you can record audio so long as one of the parties involved has given consent, and video so long as it is obtained in an area where there is a reasonable expectation of privacy.
For more information regarding PIPEDA visit www.priv.gc.ca.