In Canada, Uber and Lyft drivers can't live stream riders without 'explicit' consent
'Certainly it would run afoul of all of our privacy laws,' says Halifax privacy lawyer David Fraser
Uber and Lyft passengers in St. Louis learned last week that a local man who drove for both ride-hailing services had been covertly broadcasting hundreds of his riders' trips to a channel on the online video streaming site Twitch.
The live streams, first reported by the St. Lous Post-Dispatch, were technically legal under Missouri law. But Canadian privacy experts say that drivers would be barred from doing the same here.
"Certainly it would run afoul of all of our privacy laws," said privacy lawyer David Fraser, a partner with the Halifax law firm McInnes Cooper.
First, there's the issue of consent. The U.S. driver, Jason Gargac, told the St. Louis Post-Dispatch he obtained passenger consent using a sticker on his car's window. It notified passengers before they entered that the car contained recording devices.
But in Canada, that wouldn't be good enough, Fraser said. Under federal privacy law — to which commercial ride-hailing drivers and more traditional cab drivers alike would be subject — consent has to be explicit and informed.
It's hard to imagine that any passenger would have consented to having that happen.- Brenda McPhail, Canadian Civil Liberties Association
Riders would not only have to be notified that they were being recorded, but also told it was for the specific purpose of live streaming.
If consent was given for security purposes, a driver couldn't use those recordings for any another reason. Traditional taxi companies in cities such as Vancouver and Toronto go a step further: only police are able to access the footage.
"It wouldn't be our expectation yet, in this day and age, that when you see a camera, you're going to be streaming live on the internet, and somebody's going to be monetizing that," Fraser said.
"I think most people would feel differently intruded upon, and more intruded upon if it's recorded and broadcast than if it's just observed."
Missouri law allows a person who is participating in a conversation to record others without their consent. It's known as first-party consent.
Canada also has first-party consent, but it only applies to audio, not video, Fraser said.
Context matters, too. Private citizens are generally free to record or live stream others in public space, as long as they don't run afoul of criminal laws like voyeurism.
Commercial operations making overt or covert recordings, however, have to take additional measures to limit intrusions on a person's privacy — namely, that the surveillance taking place is minimally invasive, and that personal data is handled safely and properly, said Brenda McPhail, director of the Canadian Civil Liberties Association's Privacy, Technology and Surveillance Project.
"Live streaming is incredibly invasive," she said — in part, because it takes something that might otherwise be ephemeral and makes it available to a much wider audience that can review, save, or share the footage over time.
"It's hard to imagine that any passenger would have consented to having that happen. So it's hard to imagine how it's legal or ethically justifiable."
Gargac, the St. Louis driver, argued his vehicle was public space. But McPhail said that even if that was proven to be the case, "the fact that you're in a public space does not diminish your expectation that that kind of filming isn't going to happen and be used for purposes to which you haven't consented."
Neither Uber or Lyft answered questions about specific policies or guidelines for drivers who use cameras in their vehicle — whether for security or live streaming — but said that the St. Louis driver no longer has access to their services.
In this particular case, Uber Canada's public affairs lead Xavier Van Chau said the videos were against Uber's user terms and community guidelines, which prohibit inappropriate or disrespectful comments about passengers and using passengers' personal information for commercial gain.
Gargac commented on passengers to his viewers, and made money from his live streams. It's not clear whether drivers who stream respectfully, non-commercially, and with passengers' consent would be within the rules.