In the recently released Investigation Report P17-01, Use of employee surveillance by a BC chicken catching organization, the Office of the Information and Privacy Commissioner for British Columbia (OIPC) confirmed that organizations should only implement video surveillance in limited circumstances where other means of resolving an issue have been ineffective.
A chicken catching organization (Company) decided to introduce a body-worn audio and video surveillance system to monitor its employees in response to an incident in June 2017 that resulted in substantial public outcry following the release to the public of a covert video showing some of the Company's employees mishandling chickens. The Company hoped that the surveillance system would help prevent future instances of employee misconduct and restore the Company's reputation.
The OIPC investigated the Company's use of body-worn cameras and video surveillance under the authority of section 36(1)(a) of British Columbia's Personal Information Protection Act (PIPA).
The OIPC concluded that the Company's surveillance system contravened PIPA. The OIPC's findings were based on two primary grounds.
First, the OIPC found that the Company did not have consent to undertake the video surveillance. The OIPC confirmed that, since the collected information at issue was not being used solely for managing the employment relationship, it was not "personal employee information" for the purposes of PIPA. It was simply personal information. As a result, the Company needed to obtain consent from affected individuals or rely on an exception under PIPA to the need for consent. The Company did neither here.
Second, the OIPC found that the purposes for which the Company was collecting and using personal information through its surveillance system were not reasonable. Notwithstanding the presence of any consent, one of PIPA's core tenets is that an organization may only collect, use or disclose personal information for a purpose that a reasonable person would consider to be appropriate in the circumstances. In the context of video surveillance, these practices will only be reasonable where:
- There is a real and serious threat to personal safety or security of property
- The organization has tried all reasonable alternatives without success
- There is a reasonable prospect that the surveillance will address those threats.
The OIPC found that this threshold had not been met in this case. Specifically, there were no prior instances of employee violence, thefts, workplace injuries or other safety concerns to justify the implementation of the surveillance system and the Company did not attempt any other alternative methods to manage its employees, such as training or periodic site reviews of performance. The OIPC also noted that the Company's chosen surveillance system was unlikely to be effective in defending the Company's reputation since it was prone to human error and did not produce clear imagery.
This report has reiterated that organizations should be wary before implementing surveillance systems in the workplace. In an increasingly interconnected world, surveillance may appear to be a quick fix to various problems, including employee performance, potential misconduct and safety concerns. However, surveillance systems are considered to be invasive and privacy commissioners will scrutinize the implementation of any such system closely.
In practice, organizations are still free to employ such systems, but they should think twice before doing so. Namely, organizations should ensure they consider all other reasonable and less intrusive options to solve their identified problem rather than simply defaulting to surveillance. Audio and video surveillance is, in this sense, truly meant to be an option of last resort. Organizations run the risk of drawing the ire of Canada's privacy regulators if they do not treat it as such.
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