February 2, 2010 by Canadian Underwriter
A recent guideline issued by the Office of the Privacy Commissioner of Canada states that third parties must be blurred out in surveillance footage.
The OPC published guidelines on covert surveillance in the private sector in May of 2008. By and large, the claims industry had no issue with most of the recommended practices, save for the issue of pixelating third parties, Brian King, president of King Reed & Associates, told delegates at the 43rd Annual CICMA/CIAA Ontario Chapter Joint Conference in Toronto.
The issue came about because of a complaint to the privacy commissioner based on surveillance conducted in 2004. The privacy commissioner received the complaint in 2005 and, within days of the commissioner ruling on the case, draft guidelines came down with very little industry consultation, King said.
The case in question involved typical surveillance on a third-party claim. The investigator videotaped a woman (the subject of the surveillance) coming out of a store. She was accompanied by her sister (who lodged the privacy complaint) and her sister’s daughter.
The case involving the surveillance subject settled. But the sister made a complaint to the privacy commissioner, saying she was captured on this videotape.
The sister was never identified, her name was never used, and the tape never left the possession of the insurer or the legal counsel, King says.
As a result of the case, the privacy commissioner issued its new guidelines, calling for videotaped surveillance to mask the identities of third parties.
However, masking involves extreme labour costs, King said.
King said he did a test case of a videotape roughly 36 minutes long. It had a couple of third parties caught on tape. Using the most up-to-date technology, it took 41 hours to mask the third parties for that tape, King said.
“So what insurer is going to pay for surveillance that might have been two days or 16 hours, another 41 or 50 hours for someone to mask the third parties?” King asked rhetorically.
“We responded by agreeing to all of the points the privacy commissioner said, with the exception of the last one which was video masking,” King said. “The reason we did is we wanted to challenge this in the Federal court as being unconstitutional with respect to litigation and all the unfairness, etc.
“[The privacy commission had approximately] 45 days in which to appeal our decision not to comply and take this to court — we never heard word one. So I don’t know what that tells us as an industry, because we said: ‘Listen, we are not going to comply. We want the Federal court to decide.’ They did not even respond.”