Surveillance is increasing throughout society and many homes today use surveillance as a deterrent to crime or as an investigative tool. REALTORS® spend much of their time entering into the private homes of their clients, so it is important to consider the implications involved in taking video and / or audio recordings. Part VI of the Criminal Code creates an offence for willfully intercepting a “private communication” which covers any oral communication or telecommunication made under a reasonable expectation of privacy. This restriction pertains to audio surveillance or recordings. Similarly, the Privacy Act of British Columbia provides that it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another. It is common for potential buyers to walk around a home and discuss with their Realtor what they like/ don’t like about the home. A group may even discuss offer strategies. Do those persons have a reasonable expectation of privacy in that private home? The answer to that depends on the circumstances. If the camera or recording device is in clear view, there is likely not an expectation of privacy. If there is no indication that recordings may be taken and the home is empty, the persons may be able to establish that they had a reasonable expectation of privacy. As a Realtor, your client may not even tell you that they have recording devices in the home – either because they have forgotten or because they do not wish to divulge the information. Realtors strive to implement best practices to ensure that they, and their clients, do not become the subject, unknowingly or otherwise, of the illegal use of video or audio surveillance. The following best practices can ensure that clients are fully informed when listing a home or viewing a home:
- Discuss with your agent whether there are any video and audio recording devices in the home, to determine what further steps should be taken.
- When listing your property, include a notice on the front entrance about the use of audio or video recordings, if such devices are installed.
- Listings should include a statement that the home/property may utilize audio or video recordings.