Smile! You’re on Candid Camera. For my Millennial and Gen Z readers, that is a familiar jingle from a wildly popular hidden camera television show that spanned over 40 years and has become enshrined in popular culture. The idea was intended to be fun and whimsical to be caught on camera in a situation that was bizarre or unusual and then to be told that it was all for the camera and not real. Everyone laughs and the scene changes. Although the show was funny, cameras were rare you were unlikely to be caught on camera unless it was on Candid Camera.
Today cameras are everywhere, in high-definition video and audio, and record directly to the cloud which makes them excellent for property security and other daily functions.
Let’s consider some of the potential liabilities of cameras in real estate even up to the Criminal Code of Canada.
The scenario in view
The seller has a lovely home and valuable things that they seek to secure by way of strong locks, good insurance, and a video surveillance security system that monitors the inside and outside of the home with digital video cameras recording to the cloud. The security system includes an HD doorbell camera and all cameras in the system can be accessed in real-time anywhere in the world. Not science fiction right? I’m likely describing your home or the home of someone you know.
Anyways, the seller decides they have outgrown the property and need to sell so they call a REALTOR® to list the property on the MLS® system. While in the home the REALTOR® notices the cameras and asks if the system is active in order to provide some guidance, but what guidance?
Civil liability
If the sellers decide to keep the camera system active during showings and open houses does that provoke any civil liability for the seller, REALTOR®, or brokerage?
It’s the seller’s house and they can do what they want right? Privacy legislation would suggest that the buyer has no reasonable expectation of privacy while on the street in view of the doorbell camera, or entering another person's home, and generally privacy legislation does not apply to individuals but rather organizations or corporations. There is an exception though, and that is in areas like a bathroom where there is a reasonable expectation of privacy since bathrooms are sensitive areas in a home where sensitive things happen. In this context, case law shows there is a tort of “intrusion upon seclusion” which would suggest that such a sensitive type of invasion of privacy is actionable and a seller can be sued for something like viewing, recording, or distributing video or audio of another individual in a bathroom for example without their consent.
Additionally, if a REALTOR® or their brokerage knew about the violation and did not take action to ensure such a privacy breach was raised and stopped they could also possibly be held vicariously liable for the same.
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Criminal Code
Back to our pervious scenario, let’s assume there are no cameras in the bathroom, *phew*. However there is a possible criminal element that has not been considered. In Canada, we have a general ‘one-party consent’ system regarding the recording of a conversation. For example. If you and I have a conversation and I decide to record it and not tell you I am recording, I haven't broken any laws since I am a party to the conversation and consented to be recorded. Whether such a recording is admissible as evidence is a question for a lawyer and a different article, but for our purposes that is the way Canada sees things.
However, in situations where I am not a party to the conversation but I am recording the personal conversation of you and someone else without your consent the ‘one-party consent’ is out the window. The Criminal Code of Canada, Section 184, specifies that it is a criminal offense to record audio of third parties without their consent or knowledge. Meaning if those fancy cameras are recording audio, we all know they are then the recording of a conversation between two buyers, or a buyer and their agent in a showing for example without their knowledge or consent is a criminal act. Just having the recording in those circumstances is illegal, but especially concerning is if the seller intentionally uses the system to listen in on the buyer's private conversation to gain information to use against the buyer in a negotiation. This grows even bigger when that seller sends the recording to their agent to listen to, making them a distributor of the material that was illegally collected, which brings vicarious liability into frame for both the REALTOR® and the brokerage.
What to do
The bare minimum for the listing REALTOR® to do in protecting the seller, themselves, and their brokerage would be to canvass the issue with the seller at the time of listing and advise them of the dangers of recordings in the home especially of audio under the Criminal Code, or sensitive areas under the tort of intrusion into seclusion.
If the seller is determined to keep the system active, the REALTOR® should insist that multiple clear messages including on the MLS® listing, at the front door, and throughout the house clearly indicate to visitors that audio and video are being recorded/monitored in the home and not to enter if they do not consent to such recording. At a minimum, this demonstrates that the seller made best efforts to communicate the situation to the buyer and seek implied consent by creating and condition of entry.
This article is not intended to provide legal advice since I am not a lawyer, but it is intended to provide a heads-up warning to REALTORS®, brokerages, and by extension the sellers and buyers they represent. We can’t avoid the Candid Camera these days, but we can clarify the expectations of what is and what is not acceptable in the way we use them as an industry.