League and Williams Lawyers

Tag: personal information

  • Video Surveillance and ICBC Injury Claims – Fair Game or Foul Play?

    Video Surveillance and ICBC Injury Claims – Fair Game or Foul Play?

    Insurance adjusters and defence lawyers alike will often attempt to prove that the injured person is not really as injured as they are claiming, and video surveillance may be used as a tool in support of this defence.  Injury claimants are subject to scrutiny and it is an unfortunate reality that some injury claimants will be videoed while going about their day-to-day business after making an injury claim.  Sadly, those who are most severely injured with potentially large claims are also most likely to have the insurer use video surveillance in their case.

    Video Surveillance: What is Fair Game and What is Foul Play after an Injury Claim?

    There are several standard defences to personal injury claims that are considered by insurance adjusters and defence lawyers in every injury claim they handle.  One of these standard defences is to say that you are not really as injured as you or your doctors say you are, or in some cases, to even claim that you are not really injured at all.  In more serious, complicated and contentious injury cases, video surveillance is occasionally used as a tool to prove this defence.  The law in BC provides that if you are in public view, and not in a place where you would expect to have privacy, this type of surveillance is permitted.

    For example, it is lawful to take video of someone as they are lifting groceries out of their trunk in the grocery store parking lot, or chopping wood in their front yard.  On the other hand, it is not lawful to take video of someone when they are in the privacy of their living room or within their private backyard.

    Injury Claimants should Expect Some Scrutiny after Making a Claim

    It is true that when you make an injury claim, you are, to a certain extent, opening up your life to scrutiny.  Medical records, employment files, and school transcripts may be disclosed and examined as part of proving your claim, but being videoed is an intrusion into privacy of an entirely different sort.

    Dos and Don’ts after an Injury Claim

    If you have an injury claim and think that you may be surveilled, the best course of action is to carry on living your life as best as your injuries allow:

    • Do not to take risks or expose yourself to physical strain that may worsen your injuries,
    • Do not exaggerate your injuries,
    • Do not undertake activities your doctor has advised against, but;
    • Do your reasonable best not to allow your injuries to interfere with your normal life.

    The common purpose of surveillance is to capture someone doing something they said they couldn’t do.  It’s important to remember that video surveillance footage is taken only in the most serious or contentious cases.  Even when it is taken, it is often not used in court.  This is simply because almost all people with personal injury claims are honest about their injuries and disabilities.

    If you’ve been truthful with those supporting you through your injury and recovery, such as your employer, your doctors, and your lawyer, then there is little that video surveillance can capture that is likely to be damaging to your case.

    We hope you have learned something from this week’s video blog.  Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.  If you are injured and would like a free consult, give us a call for a free consult.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Spied on by my Vibrator? A Peek between the Sheets of BC’s Privacy Laws (Video Blog)

    Spied on by my Vibrator? A Peek between the Sheets of BC’s Privacy Laws (Video Blog)

    Hello, and welcome to this week’s blog on the law.  This week we are taking a peek between the sheets of BC’s privacy laws as they pertain to the ever growing array of internet connected consumer devices that may be collecting your personal information.

    The Case of the Spying Vibrator

    Last week, a Canadian company that manufactures a Bluetooth and Wi-Fi connectable personal massage device, also known as a vibrator, was sued for breaching privacy laws.  Although the lawsuit was commenced in the United States, the defendant company is Canadian, relating to a vibrator commonly sold in BC, and involves privacy laws that are similar to those in force in BC.

    In this recent case the We-Vibe Rave vibrator, which uses Bluetooth or Wi-Fi to connect with a smart phone app and allows users to control various settings on the vibrator remotely over the internet, is alleged to have collected data about the patterns of use of the device, including times and frequency of use.  This lawsuit is reflective of a growing industry of internet connected devices, ranging from vehicles and home thermostats, to refrigerators and washing machines, to other more, shall we say, personal devices.  The evolving industry of connected consumer devices, commonly referred to as the “internet of things” (IOT), poses interesting challenges for privacy laws.

    Importantly, the recent vibrator case alleges that the software used to connect users to the device collects and transmits enough information, including an email address, to enable the person using the device to be identified in the data collected.  None of these allegations have been proven in court.  However, in a world where small and large scale data breaches are common place, the idea that the pattern of use of someone’s vibrator has been collected, and therefore might be disclosed, could be terrifying.   For some, this data might not only be personally embarrassing, but imagine your employer learning the device was in use at 3pm on a weekday when you were at work.  The problems this type of data breach could raise are only limited by your imagination.

    BC Privacy Laws and the Internet of Things

    So, what does BC law do to protect people from their personal information being collected by others?

    BC’s Personal Information Protection Act provides that a business cannot collect “personal information” without a person’s consent.  But what is “personal information”?

    This is answered by a two-part test.

    • Firstly, it must be information that is reasonably capable of identifying a particular individual, either alone or when combined with other available information, such as an email address or IP address, and,
    • Secondly, it must be information that is collected, used or disclosed for a purpose related to the individual.

    Regarding the first part of the test, data that is collected along with the person’s name or email address, is obviously information reasonably capable of identifying that person.  But what about the second part of the test, whether the purpose of collecting the information is related to the individual?

    In the case of an internet connected vibrator, the manufacturer might say they are collecting data about the frequency and duration of use of the vibrator, along with its resulting battery life, as a means of improving future versions of the product or monitoring for defects, and therefore the data collected relates to the device, and not the individual using it.  Sounds logical, right?

    Unfortunately, no.  Although the law is less than clear in this area, when the nature of the data makes it easier to determine the identity of an individual using the device, the more likely the collection of the data is a privacy breach.  For example, data being collected about the mere number of passengers getting on and off a public bus is not a privacy breach because that data does not tell us anything about a particular individual.  However, in the case of consumer items that are typically only used by one individual, such as an internet connected toothbrush, or a vibrator, collecting data from these devices where that person can reasonably be identified, is likely illegal, even if the intended purpose is not to collect data about the individual.

    That said, the exception to this rule against collecting data is where the person has consented to the collection of personal information.  This consent can be express (such as verbally or in writing), or it can be implied.

    The BC Personal Information Protection Act states that a person is deemed (that is, implied) to have consented to the collection and use of their personal information if the purpose of collecting the information would be obvious to a reasonable person, and the person voluntarily provides the information for the purpose.  In other words, if it is not reasonably obvious what the data would be used for, and you did not give up the information for that purpose, the other party cannot collect and use the data.

    On the other hand, a business can only collect and use personal information if (and there are four to parts to this test):

    1. The business provides the person with notice of its purpose in collecting the information,
    2. The person has an opportunity to decline to allow the collection,
    3. The person does not decline to allow the collection and use of the information, and;
    4. The collection and use is reasonable given the sensitivity of the personal information.

    Importantly, the notice of the collection and use of the data must be clear and understandable (in other words, it cannot be legal mumbo-jumbo), and must be given far enough in advance of the information being collected that the person can refuse if they want.  Also, if the business collecting the information uses it for a purpose that is different from what they told the person, or they simply didn’t tell the person what the purpose was, its collection is illegal.

    Read the Fine Print that comes with Internet Connected Devices

    While it would be premature to comment on how this law might play out in the case of a spying vibrator, consumers of internet connected devices should read the fine print that comes with the devices, and ensure they are not buying more than they bargain for.  We hope you enjoyed this peek between the sheets of BC’s privacy laws and have learned something by reading this blog.

    Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002.