ICBC has recently demonstrated that biometrics is no longer just for Hollywood types like James Bond or Mission Impossible’s, Ethan Hunt. On February 16, 2012, the Office of the Information and Privacy Commissioner for British Columbia issued a 42 page report and press release regarding ICBC’s use of facial recognition technology. Interestingly, the use of facial recognition technology by ICBC came to the Privacy Commissioner’s attention because ICBC offered to assist the Vancouver Police in identification of the criminal suspects in the 2011 Stanley Cup riots by matching photos and video footage of the rioters with ICBC’s database, which according to the report has 4.4 million templates (a template is created for each photo input into the system).
As a result of her investigation, the Privacy Commissioner concluded that ICBC is authorized to use facial recognition technology to detect and prevent drivers license fraud. However, any use of ICBC’s facial recognition technology to identify criminal suspects requires a warrant, subpoena or court order. The Privacy Commissioner further commented in her report that “ICBC did not fully satisfy all of the legal requirements when it implemented facial recognition.” It failed to notify its customers that facial recognition software was in use and “The public has a right to know this new technology has been implemented and its purpose.” Unfortunately, the report does not address other non-criminal uses of the technology which are bound to arise. Given the size of the database and its technology, the potential for abuse is significant.
Unfortunately, this latest press release does not help in alleviating personal injury client fears of invasion of privacy by ICBC. Many feel like they are constantly being watched after an accident and want advice about what they should do “in case ICBC is watching.”
The reality is that if you make an insurance claim ICBC is entitled to investigate the claim. Your privacy rights have to be balanced with ICBC’s right to validate your claim. From the minute you report an accident, ICBC is watching you (although not always in the literal sense) and you should assume that you are under surveillance from the second you step foot on their premises. In some, but not all cases, ICBC will hire a private investigator to interview witnesses and/or conduct surveillance. However, unless you are making a significant claim or there is some evidence of fraud (Note: making a fraudulent personal injury claim is a criminal offence), ICBC is unlikely to conduct covert (hidden) surveillance because private investigators are expensive.
When surveillance is conducted you may be followed by an investigator from your home to public places and videotaped with the hope that they will get evidence of you doing activities that contradict your injury claim or statements you are making about your abilities. Generally speaking, you have nothing to worry about unless you have lied or exaggerated your abilities to ICBC or you live a double life that you do not want others to know about (like Perry the Platypus in my favorite Disney cartoon, Phineas and Ferb).
In British Columbia, the Privacy Act recognizes the tort of invasion of privacy. Therefore you can sue someone who violates your privacy rights. Privacy, while a fundamental right, is not absolute meaning that privacy cannot be expected in all circumstances. For example, if you have made a personal injury claim and have told your adjuster that you cannot carry groceries, it is reasonable to expect that ICBC may try to film you carrying and loading your groceries into your car. It is generally accepted by the Court that there is no expectation of privacy in public places or private places in public view. They cannot however, enter your home or other places where there is a reasonable expectation of privacy.
What is a reasonable expectation of privacy varies from case to case. In Milner v. Manufacturers Life Insurance Company 2005 BCSC 1661, the Court found that using a video camera with a zoom lens to videotape the plaintiff (who had made a claim for long term disability benefits), through the window of her home was not a violation of her privacy. In the circumstances, the blinds were open, the lights were on and anyone walking by the home could have observed the plaintiff’s activities. As a result, the Court concluded there was no expectation of privacy. The Court did conclude that the privacy of the plaintiff’s friend was violated by the private investigator who continued to film the plaintiff’s friend after she removed her shirt and the plaintiff had left the room. Since the friend was not a party to the legal action she was not awarded any damages.
ICBC has been found liable for damages for invasion of privacy. In the case of Insurance Corporation of British Columbia v. Somosh, 1983 CanLII 673 (BCSC), the private investigator hired by ICBC made a telephone call to the defendant’s employer and asked questions about him that were not relevant to the proceedings. As a result, the trial judge awarded him $1,000 in damages for invasion of privacy.
If you have a personal injury claim and you think you are being followed or someone is filming you, be sure to let your lawyer know. Also, if your friends, caregivers or employer is being contacted, you should also let your lawyer know. Your lawyer will want to talk to you about what information ICBC may have collected and can provide you with appropriate advice for your personal injury claim as well as address any privacy concerns you may have.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.