Can a homeowner record a conversation of prospective buyers during a showing or open house? What about video? It might be legitimate if the recording is restricted to activity that occurs on a homeowner’s property. In some cases, a homeowner may wish to record what happens during a showing in case something goes missing and this surveillance may also benefit you as a Realtor in terms of personal safety. However, please note that you and your client need to consider a number of factors before proceeding to record audio or video on a property, one of them being: is there sufficient consent?
In this article we summarize some legislative provisions that deal with audio and video recording. However, the information provided does not, and is not, intended to serve as legal advice. You or your clients should always consult with a legal advisor to obtain advice on legal matters which pertain to each unique situation.
What about privacy?
According to BC’s Privacy Act, a person can be sued for violating the privacy of another person. Section 1(2) states that a person’s entitlement to privacy “…is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.” Moreover, section 1(4) stipulates that such a violation can include “eavesdropping or surveillance”.
In the context of video recording during a home showing, the issue is whether it violates a potential buyer’s entitlement to privacy. Kirsten Thompson, a Canadian privacy lawyer, thinks that it is unlikely to be a violation. This is because, similar to a retail or entertainment establishment, the circumstances involve inviting members of the public into a private space. The theory here is that because potential home buyers have reduced entitlement to privacy during a home showing, being video-recorded would be reasonable in the circumstances.
With that in mind, under section 1 of BC’s Personal Information Protection Act (PIPA), “personal information” is defined as “…information about an identifiable individual…” However, section 3 stipulates that PIPA is not applicable to “…the collection, use or disclosure of personal information, if the collection, use or disclosure is for…personal or domestic purposes. ”Regarding home showings, a homeowner may want to video record to monitor for potential improper and/or unlawful behaviour by visitors. In that sense, such activity may be exempt from PIPA due to the possibility that it is for a personal or domestic purpose
Conversely, in most cases, providing real estate services is probably not for personal or domestic purposes. Indeed, Realtors who want to record people (e. g. buyer/seller clients or other Realtors), may be subject to PIPA. With that in mind, before audio or video recording anyone you should brush up on PIPA’s requirements for the collection, use and disclosure of personal information, including rules on consent.
What about the Criminal Code of Canada?
The Criminal Code covers certain audio and video recording activities. For example, there are sections in the legislation that make it illegal to record videos for voyeurism or criminal harassment purposes.
Regarding audio, sections 183 and 184 deal with the interception of private communications. Two key factors in these provisions are participation and consent.
For any type of recording, it is worth noting that under sections 191 and 193 it is a criminal offense to possess, sell, purchase, use or disclose illegally intercepted private communications.
Final thought
Obtaining necessary consent should always be kept in mind when considering audio and video recording. However, given the various risks and sensitivities concerning permissibility, including consent, Realtors may want to seek independent legal advice and/or recommend that clients do so prior to conducting any audio or video recording during a home showing.
Source: FVREB Professional Standards