In recent years, I have noticed a strange phenomenon that you may or may not have picked up on. Back in ancient history (actually only in the late 1980s), there was no Internet, at least not for the ordinary person. The information you shared was limited to gossip over the neighbour’s fence or what you discussed at the neighbourhood BBQ. I do not remember a whole lot of privacy law discussions back then, do you? Fast forward to today, and the average Canadian shares every waking moment of their life, family, random thoughts, cat videos, and meals in real time to the World Wide Web, but privacy is a big topic of discussion all of a sudden. Strange but true, and the reality of digital media does pose a risk that whatever you put out there can never be taken back. Since privacy issues are at the top of our minds, let’s look at the privacy considerations involved when showing homes.
Two privacy legislations generally bind Alberta REALTORS® and their brokerages. The Personal Information Protection Act (PIPA) is the provincial legislation governing privacy in the private sector, and the Personal Information Protection and Electronic Documents Act (PIPEDA) is the Federal legislation for all of Canada. Since PIPA has been declared substantially similar to PIPEDA, PIPA is considered the law of the land in Alberta concerning the topics in this article. Generally, the legislation establishes that organizations have a legal obligation to only collect and distribute personal information under the consent of the party whose information it is, only collect what is necessary for the purpose, protect the information in their custody, and have policies around careful destruction of the information when it is no longer needed.
Here is the crux of the matter, I would say, since if Realtors® and brokerages have an obligation regarding personal information, then it stands to reason that personal information should be understood in its meaning. Unfortunately, it is not that clean since the statute defines personal information as “information about an identifiable individual,” which leaves a hole big enough to drive a bus through, so courts and tribunals have attempted to tighten up a little using a “reasonable person” test. The reasonable person test essentially means what a reasonable person would think is appropriate in the given circumstance. Reading this article, I will assume you are a reasonable person, and you would likely consider the name, address, birth date, medical history, income and the like reasonably within the realm of personally identifiable information and to be captured under PIPA and protected. There will be minimal disagreement on the main things and the plain things.
So, how on earth is any of this related to a property showing? Like seriously, get to the point! Sorry, folks, but we needed those pretexts to establish the context. Two main interactions are in view here: the virtual showing/preview and the buyer who wants to take additional photos and video in the home. In the virtual showing situation, a buyer’s agent enters the house to either record images/video to send to a potential buyer who cannot be present or live stream the showing using a real-time video chat application. The second scenario is when the buyer wants to take additional photos or videos of their device to send to another party who is not present or even just for their own use to remember the home. Now you are wondering where the connection lies between these scenarios and privacy law, and the key to the answer is found in the definition of “personal information” I outlined above. If personal information is anything that is “about an identifiable individual,” that could mean, for example, the family photos on the wall captured in an image or video, a specific identifiable piece of art or furniture, or even the accidental capture of a utility bill or prescription bottle left on the counter.
Because there is no way to know the danger the identification of personal information could pose to the owner, agents and buyers should be extra careful not to take photos or videos, live streamed or stored on a device without disclosing it to the seller and getting their consent before doing so. An argument can be made that since the seller permitted the buyer and the agent to walk through their home, they also consented to them seeing potential personal information they have not reasonably removed or secured. However, that ‘implied’ consent argument would not likely extend to keeping(stored on the phone), or disclosing the information (emailing it mom and dad down east). PIPA covers organizations specifically; however, when a buyer is in the home, they are there under the care and control of the agent and brokerage, and the liability case could be made that the agent ought to have known the PIPA ramifications.
One of the realities of selling a home is that the buyer is often concerned with the storage space, especially in the kitchen and bathroom. This leads to the opening and closing of drawers, cupboards, and cabinets, which the listing agent should discuss with the seller before any showings occur. Suppose a buyer or showing agent accidentally comes across personal information in those places such as medical or insurance forms? In that case, they should be promptly closed away and certainly not photographed, which, as mentioned before, would not pass the “reasonable person test.”
Since every situation is a cornucopia of oddities and variables, I hope to provoke some high-level consideration on the importance of thinking about privacy law in all aspects of the real estate business. As you can see, it shows up in the strangest places so understanding the basics can help you make informed decisions in the moment, or at least prompt the questions to a broker or lawyer. Best, and simplest option is to just ask permission of the seller which is rarely refused at the time of the request.