Canada: Tagging You: Guidelines For Facial Recognition In Canada And The United States

Last Updated: November 13 2012
Article by Timothy Banks

In October, the U.S. Federal Trade Commission (FTC) issued a Staff Report, entitled " Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies". Organizations operating in Canada and the U.S. should carefully consider the guidance in the FTC Staff Report.  They should also have regard to earlier guidance on the collection of biometric information, including facial information, issued by the Office of the Privacy Commissioner of Canada (OPC).

In this post, I examine some of the privacy issues that facial recognition technologies present and compare and contrast the U.S. and Canadian guidelines on the use of facial recognition technologies.

A question of liberty and control

The Supreme Court of Canada has said that privacy is at the heart of liberty. "[R]estraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state" ( R. v. Dyment, 1988 CanLII 10 (SCC) at para. 17). Very recently, the Supreme Court of Canada reiterated that the underlying values of dignity, integrity and autonomy are fostered by protecting a biographical core of personal information from the state ( R. v. Cole, 2012 SCC 53 at para 45, quoting R. v. Plant, 1993 CanLII 70 (SCC)).

Private sector privacy advocates may argue that those same values require that individuals have the right to protect (and control) a biographical core of personal information from private sector organizations, as well, should they choose to do so.

Facial recognition technologies create new challenges for privacy protection.  In public spaces, there is, of course, the possibility that people might recognize you.  However, one of the features of urban spaces is that an individual can often move around in a way that is relatively anonymous.

Advanced facial recognition technologies have the potential to match images across platforms. Pervasive private-sector passive security video surveillance, facial recognition in digital signage, and photos and videos uploaded to social media could, in theory, be combined and cross-matched.  The ability to move around in relative anonymity could, in theory, be lost, along with the ability to control the use of one's own image. Moreover, the collection of this information could, in addition, be combined with public-sector data from government issued identification and licensing activities, leading to concerns of mass surveillance.

In Canada, we have already had some experience with the potential use of combining private sector data with public sector databases for law enforcement purposes.  Following a riot in Vancouver, the Insurance Corporation of British Columbia (ICBC) (a Crown corporation subject to private sector privacy legislation in British Columbia) offered its facial recognition technology to assist police in comparing images of individuals alleged to have participated in the riot with images in its database of drivers.  ICBC is the provincial insurers for drivers in British Columbia.  The plan was to take images contained on surveillance video and images uploaded to social media and compare them using facial recognition technology with those in ICBC's database of driver photos. The Office of the Information and Privacy Commissioner of British Columbia (IPC) responded with an investigation that concluded that ICBC did not provide adequate notice of this potential use to citizens and that it must receive a warrant, subpoena or court order before using facial recognition software to assist law enforcement.

Notwithstanding the concerns raise by the IPC in British Columbia, it is easy to be drawn into being overly critical of the use of facial recognition. As the dissenting Commissioner, J. Thomas Rosch, stated in an appendix to the FTC Staff Report, there is, as yet, little evidence that facial recognition technologies is being systematically "misused".  In Commissioner Rosch's view, the Staff Report was, among other things, premature.

It is also important to acknowledge that reasonable people may disagree on a number of the values underlying suspicion of facial recognition technology.  Some may be sceptical as to whether facial recognition technologies present any material threat to liberty.  Others may be sceptical whether the relative anonymity that urban life affords has anything to do with liberty.  Reasonable people may also differ in the extent to which they are prepared to submit to surveillance for the purposes of public safety.

Moreover, when critiquing facial recognition technologies, it is important to acknowledge that not all facial recognition technologies are the same and not all uses have the same degree of intrusion on an individual's ability to be "left alone" in relative anonymity.  As the FTC Staff Report notes, there is a spectrum of technological sophistication and a spectrum of uses. Facial recognition technologies may simply detect and locate a face in an image. Other technologies and uses may be to identify demographic characteristics or moods or emotions of the person to deliver targeted advertising.

FTC: technological neutrality but greater transparency and choice

For the most part, the FTC Staff Report is neutral with respect to the use of facial recognition technologies in consumer settings. The FTC acknowledges that facial recognition can be used "in ways that benefit consumers by providing them innovative products and services, such as the ability to try beauty products by uploading their faces to the Web, the ability to target search results, and the ability to organize and manage photos." Facial recognition technology can also be used to enhance privacy protections. The technology can be used for authentication of mobile devices and to blur images of individuals captured in video.

However, the FTC is also concerned about potential erosions of privacy in ways that are unfair to consumers.  In providing guidance, the FTC has organized its analysis around three core principles:

1.  "Privacy by Design: Companies should build in privacy at every stage of product development."

The FTC Staff Report states that the transmission of facial information should be encrypted or secured to protect against intrusion from a hacker who could view the images in real time. Organizations should also attempt to prevent unauthorized scraping of images. If images will be retained, there must be reasonable data security protections in place and the images should be subject to destruction once they are no longer necessary for the purpose for which they are collected.

2.  "Simplified Consumer Choice: For practices that are not consistent with the context of a transaction or a consumer's relationship with a business, companies should provide consumers with choices at a relevant time and context."

The FTC considers a consumer's face to be a persistent identifier in the sense that it can't simply be changed in the way that other identifiers can be such as a credit card number or a tracking cookie. Accordingly, it is critical that there be meaningful and informed choice.

The FTC Staff Report suggests that "walk-away choice" is sufficient if (a) the technology is being used to gather demographic information (age and gender), (b) images are not stored, and (c) the organization has been sufficiently transparent about its activities.

By contrast, using facial recognition technologies for identification purposes requires affirmative express consent. Similarly, using an image in a materially different way (for example, a new use) would require affirmative express consent.

3. "Transparency: Companies should make information collection and use practices transparent."

The FTC is concerned that the public is not well-educated in the uses of facial recognition technology. For example, the FTC is of the view that facial recognition technologies in digital signage would not be consistent with reasonable consumer expectations. Therefore, it is important to provide prominent notice so that consumers have a meaningful choice as to whether they want to come into contact with these types of technologies.

The FTC Staff Report states that a notice should be prominently placed at the entrance to the store or at the entrance to the area of the store in which the technology is being used. When used with digital signage or other novel applications, a notice should be placed near the digital signage or area of novel use. The notice should state the purpose of the technology and how consumers can find out more information about the technology and the practices of the company operating the signs in that venue.

If facial recognition is used on image submitted in social media, the operators of those social networks should provide consumers with an easy to find, meaningful choice and the ability to turn off the feature and delete biometric data.

Canada's focus on proportionality

The Canadian guidance from the OPC contains similar themes. Individuals should be informed that facial recognition is being collected. If facial information will be used for other purposes than those disclosed at collection, additional consent will be required.

However, unlike the U.S. approach, the Canadian approach by the OPC requires that organizations be prepared to justify the use of facial recognition. In part, this is probably because subsection 5(3) of the Personal Information Protection and Electronic Documents Act (PIPEDA) provides that "[a]n organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances" (emphasis added).

In determining what is reasonable, the OPC encourages organizations to apply a four-part test.

1. Is the use of the technology demonstrably necessary to meet a specific need?

2. Is the use of the technology likely to be effective in meeting that need?

3. Would the loss of privacy be proportionate to the benefit gained?

4. Is there are less privacy-invasive way of achieving the same end?

The application of this test means that technologies such as facial recognition are not to be employed simply because they are efficient, convenient or cost-effective. Instead, the OPC suggests that facial recognition should be "essential for satisfying a particular need". Any loss of privacy must be proportional to the benefit obtained from the technology. If the benefit to the organization of using facial recognition is minor, then it will be difficult to justify the loss of privacy from technologies that may be used to identify individuals. By contrast, technologies that are being deployed for privacy enhancing purposes (such as blurring faces in photos) or that are based simply on sensing that there is a person facing a digital signage may be much easier to justify in the cost to privacy / benefit to the organization calculus.

Implications of the Philosophical Difference

The Canadian focus on the contextual reasonableness of facial recognition technologies is an important philosophical difference in approach, with practical implications. In particular, it may be necessary in Canada to more carefully calibrate the use of facial recognition technologies in consumer settings to a clearly defined need.

Although the use of facial recognition technologies may be more restricted in Canada, they can be used in privacy enhancing ways, as demonstrated by the experience in Ontario casinos.

The Ontario Lottery and Gaming Authority (OLG) facial recognition program is instructive.  OLG maintains a voluntary self-exclusion program for persons who do not want to be admitted to gaming sites. In collaboration with the Information and Privacy Commissioner and the University of Toronto, the OLG developed a facial recognition program that uses biometric encryption. A biometric pointer key is created from a sample image. The sample is then discarded. The identity of the person can only be unlocked by the biometrically encrypted pointer key derived from a person's live image. Images that do not unlock a self-excluded gambler's photograph are discarded, thereby protecting the privacy of the general public visiting the casino. If a likely match is identified, staff will check identification, which eliminates false positives. The Ontario Information and Privacy Commissioner has authored a paper describing the project and has presented on the topic recently.

Facial recognition technologies won't be going away.  They are novel, useful, and fun for consumers.  However, developers should consider engaging in a privacy impact assessment with respect to any deployment of these technologies for new uses and applications.

For more information, visit our Data Governance Law blog at

About Fraser Milner Casgrain LLP (FMC)

FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.