The right to privacy, and recordings in the post-COVID era

By Samantha Moore (Partner) and YM Fitz-Henley (Associate)

For better or worse, a once-in-a-century pandemic changed our world.  

One notable change likely to remain with us is increased usage of online platforms to record classes, meetings and other gatherings to facilitate later access by persons who are not able to attend.  However, there are several legal considerations which accompany such recordings and may escape the immediate attention of employers, schools and other persons who collect and store such recordings with the best of intentions.

By virtue of section 13(5) of our Constitution it is not only the Government who has a duty to protect Constitutional rights of individuals.  The duty also falls in varying degrees on all persons, including legal persons such as companies and statutory bodies.  

Recordings which contain images and speech of other individuals will almost invariably impact their privacy rights.  Where there is such impact, the Constitution requires that the recordings and the manner/method of their storage be “demonstrably justified in a free and democratic society.”  The Court has determined that this involves an assessment of whether:

i.       there is a legitimate aim being pursued by the person who took the measure which infringes the right;

ii.     there is a rational connection between the aim and the measure taken;

iii.    the measure is proportional to the aim.

 In the context of challenges against measures taken by the Government, the standard of proportionality applied in Jamaica means that the measure must be the least restrictive measure which could be taken, i.e. the measure which achieves the aim but impairs the right “as little as possible”.  The Jamaican Court approved and applied a three-part proportionality test in a case brought against a non-Government institution:

i)        were the means adopted carefully designed to achieve the objective; or, are they arbitrary, unfair and based on irrational considerations? 

ii)       do the means impair “as little as possible” the right in question?

iii)     is there proportionality between the effects of the measure limiting the right and the objective?

 Nevertheless, a non-Government actor is not necessarily assessed in the same way the Government is, since there are peculiar considerations associated with the non-Government actor’s own Constitutional rights.  The Court therefore carries out a balancing exercise between the rights of non-Government actor, such as a school/employer’s right to use measures to assist students/employees in completing tasks etc., and the rights of other individuals, such as the right to privacy. 

 The Jamaican Court has not to date decided any case which raises issues regarding the constitutionality of video recordings.  The law is therefore not yet as clear and settled as one may wish.  However, principles of guidance are available from the courts of other countries which have pronounced on similar issues.

 Students/teachers/employees etc. each have informational privacy rights which may be exercised in varying degrees, depending on what is reasonably expected in all the circumstances.  Informational privacy includes the right to determine who collects, stores and disseminates information about you, as well as, to some extent, how the collection, storage and dissemination occurs.  Therefore, informational privacy issues arise every day as we use our cellphones, pass traffic cameras, go inside banks and other places with CCTV, participate in a class/meeting that is recorded etc.  The court determines what is a reasonable expectation of privacy having regard to the particular situation and the rights and interests of both the right-holder and the person or body who may be seen as infringing the right. 

One of the principles included in this right is the principle that information provided to particular persons must remain confidential to those persons and restricted to use for the purpose for which it is divulged.  A demonstration of the principle is seen in the holding by a Canadian court that it is reasonable for a person who provided their blood sample to their doctor for medical purposes to expect that the information associated with the sample will be kept private.  The courts have also commonly recognised the rights of employees to privacy in the workplace. The right to privacy includes professional activities and communication.  The European Court of Human Rights therefore recognized that the rights of professors who taught at a University were unduly infringed by the installation of cameras in auditoriums, despite those auditoriums arguably being public areas.    However, the same court also held that an employer was justified in recording the activities of an employee who was suspected of stealing from the company.

 The recording and storage of various video and audio in everyday life is therefore accompanied by various considerations which may determine whether they are constitutional or not.  However, the issue of recording and storage is not as simple as some schools, employers and companies have treated it, especially in the post-COVID era which saw a dramatic increase in recording and storage.

 Additionally, in Jamaica, recording and storage also has data protection considerations as a result of the Data Protection Act which was passed by  Parliament last year.  Once the Act takes effect, it will no doubt have an impact on the manner in which recordings which contain personal data of students/teachers/employees is collected and stored.  ‘Personal data’ is defined under the Act as any information from which a living individual can be identified (such as a name, email address or telephone number).  Employers/schools or other persons who collect and store recordings containing personal data will be required to ensure that adequate technical and organizational measures are implemented to prevent any unauthorized or unlawful access.  Failure to do so can result in liability for both civil and criminal penalties under the Act.

We live in a brave new world.  However, the foregoing considerations make it all the more important to approach these new realities carefully, and with considered legal advice.