Facial images in BC still protected – BC Court dismisses petition of Clearview AI Inc.

The Petitioner, Clearview AI Inc., was unsuccessful in seeking judicial review of a decision of the Respondent Information and Privacy Commissioner for British Columbia. The Respondent had decided that Clearview contravened British Columbia privacy legislation and ordered it to cease certain activities in British Columbia. 

Administrative law – Decisions reviewed – Privacy commissioner – Invasion of personal privacy – Judicial review – Legislative compliance – Jurisdiction – Standard of review – Reasonableness.

Clearview AI Inc. v. British Columbia (Information and Privacy Commissioner), [2024] B.C.J. No. 2354, British Columbia Supreme Court, December 18, 2024, P.K. Shergill J.

The Petitioner, Clearview AI Inc. (“Clearview”), is a company based in the United States. Clearview provides facial recognition services using images of individuals “scraped” from the Internet. The images include those of people in British Columbia. The company provides its facial recognition services to customers. 

The Respondent, Information and Privacy Commissioner for British Columbia (the “Commissioner”) made a decision in December 2021 (the “Decision”). The Decision: (1) prohibits Clearview from offering its facial recognition services to clients in British Columbia using images and biometric facial arrays (“personal information”) collected from individuals in British Columbia without their consent; (2) orders Clearview to make best efforts to cease the collection, use, and disclosure of personal information collected from individuals in British Columbia without their consent; and (3) orders Clearview to make best efforts to delete personal information collected from individuals in British Columbia without their consent.

Clearview applied for judicial review of the Decision, arguing it was unreasonable on the basis that the Commissioner erred in: (1) concluding that the Personal Information and Privacy Act (“PIPA”) applies to Clearview; (2) determining that the personal information collected by Clearview from publicly available websites published electronically, was not information that was “available to the public” pursuant to PIPA; and (3) finding that Clearview’s purpose for collecting, using, and disclosing the personal information was not a purpose that “a reasonable person” would consider appropriate in the circumstances, and further failing to consider whether the interpretation was consistent with the values set out in the Canadian Charter of Rights and Freedoms (“Charter“).

The Attorney General of British Columbia participated in the proceeding with respect to two issues. First, whether the Commissioner had jurisdiction over Clearview. Second, whether the Commissioner was required to consider Charter values when interpreting sections of PIPA. 

The court first decided that the Commissioner could participate in the hearing and make submissions on the merits. 

The parties agreed that: (a) the question of whether PIPA applies to Clearview raised a jurisdictional question, and the correctness standard applied to that issue; and (b) issues about the Commissioner’s interpretation of PIPA were subject to the reasonableness standard. The reasonableness standard also applied to the Charter values argument. 

The court held that the Commissioner correctly found that PIPA applies to Clearview’s activities. The “Unifund” test can be met by collecting data from individuals in BC through the internet. 

The court carefully reviewed the Commissioner’s decision with respect to the issue of whether the information was “publicly available”. Within this context, the court also considered Clearview’s argument that the Commissioner did not adequately consider its Charter values argument regarding the scope of the phrase “publicly available”. The court also carefully considered Clearview’s argument that the Commissioner erred in finding it did not have a reasonable purpose for the collection, use and disclosure of personal information. Clearview raised a Charter values argument for the first time on judicial review with respect to the “reasonable purpose” test. The court refused to consider that new Charter argument regarding that test.

The court held that the Commissioner’s decision was reasonable with respect to the issue of “publicly available” and the “reasonable purpose” test.

The court dismissed the petition for judicial review.

This case was digested by Scott J. Marcinkow of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].