Canada Supreme Court reaffirmed the right of anonymity on line

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Supreme Court case R. vs Spencer

In its June 13, 2014 decision in R vs Spencer the Supreme Court of Canada has begun what will undoubtedly be a long process of delineating the privacy rights of Canadians’ in their online activities. The question at issue in Spencer is whether Canadians have a Charterprotected privacy interest in data gathered by their internet service provider (“ISP”) about their online activities. The Court answered this question in the affirmative.

Mr. Spencer was the subject of a police investigation for activities related to child pornography. During the investigation, the police requested information from Mr. Spencer’s ISP, which complied with the request. The police had not obtained a search warrant for this information, and Mr. Spencer challenged the provision of the information to the police by his ISP on the grounds that it violated his Charter right against unreasonable search and seizure.

Under section 8 of the Charter, every person has the right to be protected from state intrusion on information to which they have a reasonable expectation of privacy, except where such intrusion is authorized by law and the law itself is reasonable. The question of interest in this case was whether an individual has a reasonable expectation of privacy over information about their internet activities, where that information was gathered by their ISP. This requires both the subjective expectation of privacy by the person and that the expectation of privacy be objectively reasonable in the circumstances. The Court concluded that there is such a reasonable expectation.

In coming to this conclusion, Justice Cromwell noted that a subjective expectation of privacy by an internet user can be inferred from the fact that they transmit sensitive information through their internet connection. This expands the internet user’s subjective expectation of privacy from the contractual relationship between him or herself and the ISP, to any ISP through which sensitive information is transmitted by a person. Justice Cromwell did not consider this aspect of the test to be controversial.

However, the question of whether it is reasonable for an internet user to expect that their information would not be disclosed is more challenging. Anonymity in the public sphere has been recognized as being a type of privacy that can reasonably be expected in certain circumstances. Of particular interest in this context, the Court recognized that the internet has extended both the self-perceived ability of individuals to present themselves anonymously to the world, and the extent to which information can be gathered on people’s activities while they believe themselves to be acting anonymously. The contrast between this perceived anonymity and the ability of many entities to track individual online activity will certainly be the subject of further comment in the realm of internet privacy. In this case, the Court determined that it was reasonable to expect that one’s internet activities would remain private.

The Court's discussion of the nature of the privacy interest introduced a new concept in Canadian cases: anonymity. The SCC found that informational privacy includes online anonymity: 

The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous — by guarding the link between the information and the identity of the person to whom it relates — the user can in large measure be assured that the activity remains private.

However, the Court was careful to clarify that there is no right to anonymity online. The privacy interest in anonymous internet use is simply one factor in assessing an individual's reasonable expectation of privacy on the facts of a case.