2. GPS technology, anti-stalking legislation and privacy
Born of military necessity, Global Positioning Systems Technology (commonly referred to as GPS) allows for state of the art positioning surveillance. While initially limited to air force reconnaissance, GPS technology is increasingly coveted in civilian circles. In effect, GPS 'transreceivers' (also known as a "tracking devices")51, easily installed in telephones, vehicles, or even placed on persons, can record, track and effortlessly locate most any moving target with impressive accuracy, by emitting radio signals.
When deployed by the state to collect evidence, GPS technology is progressively under scrutiny, as evidenced by the leading American case on point State v Jackson52. Absent state action, however, in the US at least, GPS may legally be used to track property53. The legality of private monitoring third parties and their property remains to be authoritatively settled, although some commentators speculate that "[t]racks of third parties, or of their property, without their knowledge are probably inadmissible and even illegal"54. The basis for this assertion is anti-stalking laws55, as tracking someone - be it through conventional means or GPS technology, is of course unlawful56.
Having said this, anti-stalking provisions, while certainly helpful in some cases, are not necessarily relevant when GPS is used as an assistive technology in the health-care context (as noted, most often in cases of dementia). Beyond the obviously nefarious social implications of exposing carers to criminal liability, these laws are wholly inapplicable, requiring an element of malice57 and reasonable fear58 on the part of the victim, both lacking and irrelevant in this context. Quite clearly, it would seem, those who care for dementia sufferers – be it in an institutional or domiciliary context, are not likely to be charged under such laws for attempting to prevent wandering – nor, of course, should they be.
Likewise, as discussed below, similar logic would preclude patients or more likely their legal guardians or substitute decision makers from availing themselves of tort59 or other private law remedies60 against a monitoring caregiver – since that person is most often the legal guardian him or herself. Instead, the current situation is best characterized as a virtual legal vacuum. Indeed, In the US, the Second Restatement of Torts recognizes four privacy torts. For the purposes of tracking devices, Section 652A(1)(A) and (1)(B) – the torts for unreasonable intrusion upon the seclusion of another and for dissemination of an individual's private information – are applicable. If an individual wearing a personal locator whose information was sold to a third party were to seek a claim due to publicity dispersed regarding his private life, he must show that the matter publicized was of a kind that would be "highly offensive to a reasonable person", and that the information was "not of legitimate concern to the public". However, under this tort, a person cannot recover damages when he is in the public eye, as the intrusion does not pertain to his private life". #p#分页标题#e#
For liability to exist under the intentional intrusion of privacy tort, there must be an "intentional intrusion upon the solitude or seclusion of another", and the intrusion must be of a kind that is "highly offensive to a reasonable person". Because the tort involves an individual's solitude, liability generally does not exist when the individual is in the public eye. However, solitude is not dependant upon whether the location is private, but rather upon the expectation of privacy and the kind of invasion that takes place".
Of all the privacy torts, the intrusion upon seclusion tort could most easily be applied in the GPS context. This tort is available against a person who intrudes on the solitude or seclusion of another if the intrusion would be highly offensive to a reasonable person. This intrusion need not be physical, but would include any intrusion, such as eavesdropping, onto an individual's private concerns. Thus, it seems at first blush that if a company with positioning information released a user's information to a third party without consumer consent, the consumer would have a possible cause of action. The intrusion upon seclusion tort is also limited, however. Suits rarely succeed if the information has been gathered in a public space. Thus, as with the disclosure of personal facts tort, the fact that a person's travels to public places are observable to the public would usually defeat any claimed"61.
While it is beyond the scope of this present endeavour to thoroughly discuss privacy law on point, suffice it to note that in Canada, the provinces that have created a statutory tort of invasion of privacy are: British Columbia (Privacy Act, R.S.B.C. 1979, c. 336), Manitoba (The Privacy Act, R.S.M. 1987, c. P125), Newfoundland (Privacy Act, R.S.N. 1990, c. P-22) and Saskatchewan (The Privacy Act, R.S.S. 1978, c. P-24). In Quebec, the situation is far simpler as the Civil Code of Quebec expressly recognizes the right to privacy. Invasion of privacy is a "delict" as per art. 1457 (then 1053 C.C.L.C. See Robbins v C.B.C. (1957), [1958] Que. S.C. 152, 12 D.L.R. (2d) 35). See also section 5 of Quebec's Charter of Human Rights and Freedoms, R.S.Q. c. C-12 [hereinafter Quebec Charter], guarantees to everyone the "right to respect for his private life". Art. 3 Civil Code of Quebec: "Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable".