Ont CA majority says no Charter right to text in private

14 Jul

In a case that speaks to the bounds of digital privacy, the Court of Appeal for Ontario recently held that a text message sender has no reasonable expectation of privacy in text messages stored on a recipient’s phone.

Text messaging is a unique form of communication. To text certainly invites the feeling of engaging in a private conversation, but a sender’s texts are received by another person who typically has no duty of confidence and who has exclusive control of the “inbox” in which the texts are invariably left to reside. Like digital messages of all kinds, once sent, a text message is beyond control.

The question for courts in these matters is a normative one – what ought to be treated as private in our society? – so the loss of control over information does not necessarily invalidate a Charter-based privacy claim. Nonetheless, there’s a real practical consequence to the loss of control that Courts must reckon with. If they do not, we risk unduly restricting the free flow of information and free expression. Privacy is always a matter of striking an appropriate balance.

The Court issued its balance-striking judgement about text messaging on July 8th. Justice MacPherson wrote for the majority that denied privacy protection, and held that control was of “central importance” in the context. He wrote:

The facts of this case demonstrate that, unlike in Spencer and Cole, the ability to control access to the information is of central importance to the assessment of the privacy claim. We are not talking about the appellant’s privacy interest in the contents of his own phone, or even the contents of a phone belonging to someone else, but which he occasionally used. We are also not dealing with deeply personal, intimate details going to the appellant’s biographical core. Here, we are talking about text messages on someone else’s phone that reveal no more than what the messages contained – discussions regarding the trafficking of firearms.

This is far from being a question of whether the appellant had “exclusive control” over the content. He had no ability to regulate access and no control over what Winchester (or anyone) did with the contents of Winchester’s phone. The appellant’s request to Winchester that he delete the messages is some indication of his awareness of this fact. Further, his choice over his method of communication created a permanent record over which Winchester exercised control.

It has never been the case that privacy rights are absolute. Not everything we wish to keep confidential is protected under s. 8 of the Charter. In my view, the manner in which one elects to communicate must affect the degree of privacy protection one can reasonably expect.

Justice Laforme dissented – clearly differing from the majority on the importance of control, citing numerous cases in which the loss of control has not precluded the recognition of a Charter-protected privacy interest, stressing that privacy is a normative concept and in general ascribing great value to texting in private.

While the debate between majority and minority about the significance of control and standing to raise section 8 of the Charter is important, the majority and minority do not differ by much in principle. Where they clearly do differ is on the value they ascribe to text messaging. To start with the minority, Justice Laforme says texting is the “modern version of a conversation,” and is nearly romantic about it: “In my view, these private communications are an increasingly central element of the private sphere that must be protected under s. 8.”  Justice MacPherson, in contrast, has no interest in constitutionalizing texting. In a humorous and effective appeal to authority, he links to the Ontario health and physical education curriculum, under which we teach 12-year-olds across the province, “If you do not want someone else to know about something, you should not write about it or post it.” This, of course, dovetails with Justice MacPherson’s important point about electing how to communicate. To people older than 12, we typically say something like, “You want privacy, pick up the phone.”

R. v. Marakah, 2016 ONCA 542 (CanLII).

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