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The rules of engagement around surveillance

With the use of electronic surveillance on the rise, it's important that business owners understand the rules of engagement for both video and audio, says Jim Downs, founding partner and managing director of MKD International Inc.

“The law around this is well-established by the courts and with the increasing number of businesses using surveillance, it’s important they understand the rules,” he tells AdvocateDaily.com

Downs, a retired Toronto police detective, says the rules around the use of surveillance come down to the reasonable expectation of privacy. It's also important to understand the difference between the guidelines for video and audio, he says.

“If a business installs cameras in its reception area, for example, there is nothing wrong with that,” he says. “Often, companies will also post a sign indicating the vicinity is under video surveillance."

This means that if the location is public, such as the reception or lobby, then video is permitted, but it isn’t allowed in a private office, such as a doctor’s examination room, Downs explains.

“The reason is there is no expectation of privacy in a public place for video,” he says. “There is such an expectation for the patient in an exam room.”

It is, however, illegal to capture sound because a person has an expectation of privacy when it comes to their conversations in an office — or anywhere else, Downs says.

"It's also against the law to use any device to enhance the sound in a public place so that it can be captured or recorded by people other than those involved in the conversation," he says. 

MKD, which is frequently hired to advise businesses on video systems for security purposes, is also retained by companies — including those in the insurance industry — to conduct surveillance on employees who claim they are unable to work because of illness or injury.

A growing number of companies are using surveillance to probe whether employees off sick are being truthful about why they aren't reporting for work, Downs says.

The investigative firm will conduct surveillance on those individuals to capture video and still photos that will help determine whether the person is actually injured or sick.

“We can only do that in public spaces,” he says. "As long as we are on public property, we can conduct surveillance and if we can see the subject, we can take pictures because the camera is considered an extension of the eye."

However, MKD doesn't do any sound surveillance to capture voice communications because under most circumstances it is illegal, Downs says. It’s also against the law to record verbal discussions unless one party to the conversation is aware they are being recorded, he says.

“The other person doesn’t have to consent at all and it's totally legal,” he says. “It is a violation to record any conversation that you are not party to. It’s an invasion of privacy and a criminal offence.”

Downs says he often has to explain to clients the rules around video and audio use. 

“We have had calls from individuals asking whether MKD can put a bug in their spouse’s car — well, we cannot do that. It’s an invasion of privacy and it’s illegal,” he says.

Advances in technology have allowed for businesses — and individuals — to use more cameras, but it's critical they are used lawfully, Downs says.

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