Projects examine these issues in the light of consent, privacy, labour rights, and employment law
The Law Commission of Ontario has initiated two projects focusing on intimate images and deepfakes and on workplace surveillance, examining these issues through the lens of consent, privacy, labour rights, and employment law.
The LCO has appointed legal counsel Susie Lindsay to lead the intimate images and deepfakes project, while legal counsel Ryan Fritsch will spearhead the workplace surveillance project. Public consultation papers on both projects are set to be released this year.
The LCO noted that Manitoba had updated its civil law to directly address deepfakes, while Bill C-16 has modified the Criminal Code to cover sexualized deepfakes. However, Ontario is the sole common law province that has not implemented a civil statute tackling this issue; thus, the project will examine the reform of Ontario civil law to cover these concerns.
This project will define the concepts of “intimate image,” “deepfake,” “creation,” and “distribution” to inform legislation and for clarity. The project investigates the implementation of a civil legal framework to tackle the creation, alteration, and distribution of nonconsensual intimate images, which has increasingly been used in harassing, extorting, silencing, or sexually exploiting people.
The project will identify parties who ought to be held responsible, outline the assessment of liability, and determine whether protection rests on a reasonable expectation of privacy. Moreover, it will examine necessary remedies for victims – including orders to remove, destroy, or prohibit the future production or release of such images – as well as the expected turnaround time and effectiveness of such remedies.
The project will also examine whether cases related to intimate images or deepfakes should go before traditional courts or through specialized tribunals. It will examine the effectiveness of a fast-track process in handling such cases.
The LCO confirmed that the project is in the early stages of development.
This project examines the growing adoption of digital monitoring and surveillance technologies like activity-tracking software, location tracking, cameras and audio monitoring, algorithm-based performance scoring, biometrics-measuring wearable devices, and online profiling and social media monitoring in Ontario’s workplaces. These technologies have ostensibly been adopted to bolster productivity, safety, security, and operational efficiency; however, they may impact privacy, dignity, mental health, transparency, and fairness for workers, the LCO pointed out.
The implementation of monitoring and surveillance technology concurrently has raised questions on the assignment, review, and compensation of work; the tracking of personal devices beyond the workplace; and the overall effect of constant, overlapping monitoring methods. The LCO’s project aims to determine the implications of such technologies with regard to privacy and human rights, employment and labour law, platform workers, and AI governance.
Ontario’s Employment Standards Act, 2000 has been changed to require certain employers to draft written electronic monitoring policies. Moreover, the Digital Platform Workers’ Rights Act, 2022 established new requirements to disclose the use of work assignment and payment algorithms for some platform-based work.
Canada’s privacy commissioners have investigated workplace surveillance and algorithmic management through published research. The current project is in its initial research phase, but the LCO indicated its belief that a comprehensive evaluation could be conducted on the effect of surveillance technologies on workers, the responsiveness of existing legislation, and other needed law and reform options.
The LCO is appointing an independent advisory committee for this project.
