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Tug-of-war between business needs and privacy rights will continue: lawyers

Millions of Canadians’ images scraped from social media.
Data privacy and security - Getty Images
Getty Images

Finding a balance between business needs and individuals’ right to privacy will be contentious for some time to come, Canadian lawyers say.

It’s an issue that came into sharp focus with Canadian privacy commissioners’ recent report on Clearview AI, a company whose technology allowed law enforcement and commercial organizations to match photographs of unknown people against the company’s databank of more than three billion images for investigation purposes. 

Federal and provincial commissioners said Feb. 3 that included millions of Canadian images, they said, adding people did not place their images online for that collection purpose, meaning the law was broken.

And that, they said, is a clear violation of the privacy rights of Canadians, the commissioners’ investigation has found. Those violations are of federal and provincial laws, they said.

A team of Canadian lawyers from global law firm Norton Rose Fulbright – including Vancouver lawyers Sara A. Levine and Alexis Kerr - studied the commissioners’ report

“The rapid growth in reliance on biometrics for a variety of commercial and other purposes has raised significant concerns not only in Canada but also globally,” they said in a commentary.

And, while the commissioners have released guidance on such technology’s use, the lawyers said, “the development, use, and commercialization of such technologies by businesses remains subject to scrutiny. The key point of tension in the guidance will be balancing business needs with individuals’ right to privacy. The commissioners’ clear intention to enforce Clearview’s compliance suggests these issues will continue to be on the front burner for quite some time to come.”

The lawyers said heavy reliance on social media, and on the readily available personal data found in such places, adds another wrinkle to the story.

Clearview had argued it had scraped peoples’ images that were publicly available and that it was therefore exempt from gaining consent from the people whose images were gathered.

“[Clearview] used this information for a purpose unrelated to the purposes for which the information had originally been posted, and therefore could not rely on these exemptions,” the lawyers said. “In short, the fact that personal information is available online does not mean it can be used by anyone for any purpose he or she chooses, or that consent is not necessary. Personal information available online is still protected by privacy laws unless the specific requirements of the ‘publicly available’ exception apply.

jhainsworth@glaciermedia.ca

@Jhainswo

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