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By Richard Stobbe

An online video shows someone jogging on a public pathway during a 2-second clip. Let me get this straight… does this constitute a breach of privacy rights? According to an Ontario court, the answer is yes.

This is a scenario that is likely repeated every year across the country in a variety of industries. In this case, a real estate developer engaged a video developer to produce a sales video for a residential condominium project. To capture the “lifestyle” of the neighbourhood, the video developer shot footage of local shops, bicycling paths, jogging trails, and other local amenities. In the course of this project, the plaintiff – a jogger – was caught on video, and after editing, a 2-second clip of the plaintiff was included in the final 2-minute promotional video.

Like all video, this one was posted to YouTube, where it lived for 1 week, before being taken down in response to the plaintiff’s complaints.

In Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435 (ON SCSM), the court considered the claim that this clip of the jogger constituted a violation of privacy rights and appropriation of personality rights.   In the analysis, the court considered the tort of “intrusion upon seclusion”, which was designed to provide a remedy for conduct that intrudes upon private affairs where the invasion of privacy is considered “highly offensive”.

The court in this case decided that a 2-second video clip of someone jogging on a public pathway does constitute a “highly offensive” invasion of a person’s private affairs. The plaintiff was awarded $4,000 for the breach of privacy rights and $100 for the appropriation of personality.

Some points to consider:

• It is unclear why the court did not spend more time considering the issue of “reasonable expectation of privacy”. A number of court decisions have looked at this issue as it relates to video or photography on public beaches, public schools and other public places. This is not a new issue in privacy law, but it appears to have been given short shrift in this decision.
• The impact of this decision must be put into context: it is an Ontario small claims court decision, so it won’t be binding on other courts. However, it may be referred to in other cases of this type. The decision is unlikely to be appealed considering the amounts at issue, so we probably won’t see a review of the analysis at a higher level of court.
• Consider the implications of this approach to privacy and personality rights in light of the use of drone footage in making promotional videos – something that is becoming more common as costs lower and access to this technology increases.
• When entering into contracts for any promotional or marketing collateral – website content, images, video footage, film, advertisements, print materials – both sides should review the terms to confirm who bears the risk of addressing complaints such as this one, and who bears the responsibility for obtaining consents or releases from recognizable individuals who appear in the media content.

For advice regarding privacy rights, personality rights, drone law, and video development contracts, contact Field Law.

Calgary – 10:00 MST

By Richard Stobbe

In response to the proliferation of recreational drones in American skies, the Federal Aviation Administration (FAA) introduced a rule known as the “Registration Rule” in 2015.  The rule required drone owners to register their drones with the FAA.   A recreational operator filed petitions in US Federal Court to challenge the FAA’s jursdiction to make the Registration Rule. The drone operator’s argument was that the FAA lacked statutory authority to issue the Registration Rule since it was outside the scope of the FAA’s jurisdiction. Last week, a  US Federal Court of Appeals decision  agreed and quashed the FAA’s Registration Rule.

This represents a set-back for the FAA’s regulatory reach over drones, and it illustrates the jurisdictional quandry of aviation regulators. In the US case, the FAA’s authority was actually curtailed by an earlier 2012 law, and this case did not turn upon a question of constitutional juridiction.

In Canada, there is a separation of powers between federal and provincial governments, and aviation falls into federal authority (as it does in the US). It is certainly open to drone operators to question the scope of the federal rule-making authority on constitutional grounds. In fact, in the drone industry that type of fight is likely to occur sooner or later in Canada.

If the FAA does not confirm its regulatory scope either through a court decision or amended legislation, then it won’t be able to maintain the drone Registration Rule. In any event, mere registration pales in comparison with the level of control that is suggested by this reported plan: The Trump administration is planning to ask Congress to give the federal government sweeping powers to “track, hack and destroy any type of drone over domestic soil with a new exception to laws governing surveillance, computer privacy and aircraft protection.”

This makes recent Canadian drone regulations positively benign by comparison.

Calgary – 07:00 MT

By Richard Stobbe

As the recreational and commercial use of drones expands, the calls for a regulatory framework have grown louder. The Canadian federal government has, until last week, taken the simple approach of prohibiting the use of UAVs: “No person shall operate an unmanned air vehicle in flight except in accordance with a special flight operations certificate or an air operator certificate.” Essentially, any commercial use of drones or use of drones that weigh more than 35 kg had to be registered with a Special Flight Operations Certificate (SFOC) through Transport Canada.

So far, the system of regulatory control was simplistic but not exactly scaleable, considering the explosive growth in this area.

Last week, as part of its effort to bring order to the chaos, the Canadian federal government released its Interim Order Respecting the Use of Model Aircraft under the Canadian Aviation Regulations which fall under the Aeronautics Act.

Now, if you fly your drone for recreational purposes and it weighs between 250 g and 35 kg, you don’t need an SFOC from Transport Canada to fly. But wait… there’s more!

This interim order essentially classifies small recreational drones as “model aircraft”, keeps the distinction for “unmanned air vehicles”, and adds some regulatory details.  The old regulations took a broad brush approach to the relatively small population of model aircraft hobbyists (hey guys… don’t fly into a cloud or in a manner that is hazardous to aviation safety). By contrast, the new rules provide a more objective set of criteria. Now, a person must not operate a recreational drone or model aircraft:

1. at an altitude greater than 300 feet AGL;
2. at a lateral distance of less than 250 feet (75m) from buildings, structures, vehicles, vessels, animals and the public;
3. within 9 km of an aerodrome;
4. unless it is operated within VLOS (visual line-of-sight) at all times during the flight;
5. at a lateral distance of more than 1640 feet (500 m) from the person’s location;
6. within controlled airspace;
7. within restricted airspace;
8. over or within a forest fire area, or any area that is located within 9 km of a forest fire area;
9. over or within the security perimeter of a police or first responder emergency operation site;
10. over or within an open-air assembly of persons;
11. at night;
12. in cloud;
13. while operating another drone or model aircraft;
14. unless the name, address and telephone number of the owner is clearly made visible on the aircraft.

Sigh… one can’t help a certain nostalgia for any regulation that still uses the word “aerodrome”. Those are just some of the new drone rules. Drones used for commercial or research purposes still require an SFOC.

For breach of the rules applying to recreational use, there are fines of between $3,000 and $15,000.

For our readers in Calgary, check out Taking Off: Drone Law in Canada where our Emerging Technologies Group presents an overview of the legal landscape surrounding drone use and discusses what you need to know to use drones in your business. The seminar will cover topics including:

• Discussion of the current regulatory approach at the federal, provincial and municipal level
• Potential privacy, contract and insurance issues
• Drone-related liability
• Patent/intellectual property protection

Additional Reading: The Wild West: Drone Laws And Privacy In Canada

Calgary – 07:00 MT