Privacy Rights & Social Media ContentR. v. Craig, 2016 BCCA 154 (CanLII)
In a landmark decision, R. v. Craig, 2016 BCCA 154, the British Columbia Court of Appeal ruled that one maintains a reasonable expectation of privacy under the Charter of Rights and Freedoms in instant messages sent to another user via a social networking website. While this was a criminal case, it is unquestionably precedent setting, and its potential implications will surely be far-reaching.
Craig, aged 22, and the complainant (E.V.), aged 13, came into contact through Nexopia, a social media website used primarily by teenagers. E.V. testified that she met Mr. Craig through “messaging” with him on Nexopia in November 2009. Messaging is a private communication similar to email. Her Nexopia user name was “babygurl,[name]” and his was “AaronCraig”.
They continued to communicate in this manner, and the content of the messages became increasingly sexual. Finally, they met in person and engaged in sexual intercourse. It later emerged that subsequent to these events, Craig had, through Nexopia, told some of E.V.’s friends about what happened. This terminated their relationship and the matter was eventually brought to the attention of the police who arrested and charged Craig with sexual interference and internet luring under the Criminal Code. Search warrants were executed on Nexopia’s servers for data relating to the usernames of E.V., several of her friends, and Craig.
But at the trial, the Crown did not tender any messages seized directly from Craig’s account. Rather, the Crown used the messages from the accounts of E.V. and the witnesses, who did not object to this use of their conversations. This included messages sent by Craig to them. On this basis, the argument was accepted by the trial judge that Craig had no standing to challenge the lawfulness of the searches as the messages were recovered from accounts other than his own.
Craig appealed, arguing his rights under section 8 of the Charter of Rights and Freedoms were infringed. Specifically, he argued he maintained a reasonable expectation of privacy in the social media messages he sent to the girls even though they were found on their accounts, not his.
The British Columbia Court of Appeal agreed.
What is Nexopia?
Not all social media networks are alike. Understanding the nature of Nexopia helps explain the significance of the Court’s decision.
Nexopia is a Canadian social networking website. It was designed for teens. Its motto says it all: “Because your mom’s on Facebook.”
Real names aren’t necessary. There are no restrictions on whom users can interact with, and the site offers forums and an internal messaging system for conversations with strangers. Users create and design their own profiles, friends list, blogs, and galleries. There is technically a “code of conduct” and users can use a “report abuse” button. But there is far less of a priority placed on privacy than with other social media sites such as Facebook. Indeed, users often post personal information intending to interact with other members of the public.
Does Social Media Provide A Reasonable Expectation of Privacy?
Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” The Supreme Court has held that it protects a “reasonable expectation” of privacy, determined under the “totality of the circumstances” test. Yet this test is continually challenged by developments in technologies and societal attitudes. As the British Columbia Court of Appeal noted in its decision, over the past 30 years, countless circumstances have emerged engaging the question of privacy that were once unimaginable: the rise of digital information, the Internet, social media, heat detecting cameras, drones, and recent revelations of mass electronic state surveillance, for example.
The prevalence of social media websites and networks is well documented. Countless messages are sent and received each day. The Court noted that the mere fact that once an instant message is sent, and can then be forwarded with ease, printed and circulated, or given to the authorities, that does not necessarily mean the sender has lost any and all expectation of privacy in its contents.
Rather, the Court held that the sender of messages via a social media network does maintain a reasonable expectation of privacy. In Mr. Craig’s case, the messages were originally sent to one intended recipient only; that is, in his mind, they were never meant for public consumption. The accounts were also protected by user names and passwords.
That the messages were placed in the hands of third parties (the girls who received them) did not erode Craig’s expectation of confidentiality in their contents. The messages were also deeply personal, exposing highly intimate details about Mr. Craig’s lifestyle and personal choices. He did not anticipate them being redistributed. They were entitled to constitutional protection.
Online Privacy Rights Continue to Evolve
Craig is a remarkable decision not only because the British Columbia Court of Appeal is the first appellate court in Canada to directly determine our constitutionally protected privacy rights may extend to social media communications. It significance must be understood in light of the particular social network in question, Nexopia. If this social media network, with its very lax privacy standards, nevertheless afforded Craig a reasonable expectation of privacy, how could this conclusion not similarly extended to activities on other more traditional social networks, such as Facebook?
Of course, it bears repeating that the messages were ostensibly private, and not part of a group chat or forum. But that Craig could find standing to challenge the police seizure of these messages notwithstanding the realities of Nexopia and that they were located not on his personal account but on the accounts of the recipients is a social media decision without precedent.
The case does build on the British Columbia Court of Appeal’s own prior decision in R. v. Pelucco, 2015 BCCA 370, addressing a similar issue with respect to text messages. In Pelucco, a majority of the court found that the sender of a text has a reasonable expectation of privacy over its contents, even after it is sent. It was not appealed to the Supreme Court of Canada.
As the Court also notes, the decision is consistent with the spirit and intent of the Protecting Canadians from Online Crime Act, S.C. 2014, c. 31, which criminalized the non-consensual distribution of intimate images through the newly enacted s. 162.1 of the Criminal Code. Parliament recognized a reasonable expectation of privacy despite the fact that the subject of the image lacked any formal legal control over the image (although, consider the Supreme Court’s obiter remarks on this issue, at least with respect to children, in R. v. Barabash, 2015 SCC 29 at para 30.)
This was a criminal case, concerned primarily with the lawfulness of the police searching social media accounts that contained content generated by the accused, but were controlled by third parties, and whether or not he had standing to challenge those searches. But its conclusions, including that privacy rights accrue to social media networks and the messages sent between users (who are strangers or known only by pseudonyms) may transcend the four corners of a criminal prosecution.
Whether or not these conclusions on social media privacy rights can be somehow transformed and applied to other areas of the law will be fascinating to watch.