Privacy and Freedom of Information

CRC Article 16 protects children against arbitrary and unlawful interference with their privacy, family, home or correspondence and against unlawful attacks upon their honour or reputation. It is a robust privacy right that is only partly reflected in s. 8 of Canada’s Charter and frequently intersects with the child’s other rights such as the right to participation, information, education and health.

The Convention on the Rights of the Child (CRC) affirms that children have the human right to privacy consistent with protections in other international human rights instruments. This is closely tied to other CRC civil rights including the rights to freedom of expression, thought and information from diverse sources as well as children’s Charter rights in Canada, including s. 7.

Children need this protection as their rights may be violated in a variety of ways such as:

  • Online: luring, child pornography, harassment and intimidation, commercial exploitation of children’s online play, data mining of their online footprints
  • Offline: privacy interests at home, at school, at work, in institutional settings, including courts

Offline violations are frequently lost in the deluge of online privacy threats and corresponding legislative and policy responses that denounce or sensationalize the risks to children and youth.

In Canada there have been few remedies for invasion of privacy in the common law. However, several statutory remedies have developed. These include:

  • The federal Privacy Act replaced the Canadian Human Rights Act which initially contained a part dealing with privacy rights
  • The Quebec Civil Code provides detailed remedies for invasion of privacy and protection of reputation and the Quebec Charter has privacy protection provisions modeled upon international human rights law
  • Following pressure from European trading partners, federal privacy regulation was extended to the private sector through PIPEDA, except where provinces have adopted their own legislation

Other jurisdictions have made statutory attempts at protecting children’s privacy, such as:

Canadian lawyers can materially advance the privacy rights of children and young people by remaining alert to the scope and versatility of a child privacy rights analysis in the context of other child rights violations, and by interpreting and applying CRC privacy rights through an inter-sectoral analysis, such as with the rights to education, health, freedom of information, freedom of expression or others.

International Law

CRC Article 16

  • No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
  • The child has the right to the protection of the law against such interference or attacks.

CRC Article 17

  • States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.
  • To this end, States Parties shall:
  • Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;
  • Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;
  • Encourage the production and dissemination of children's books;
  • Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;
  • Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.

CRC Article 40

  • States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
  • To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:…
  • (vii) To have his or her privacy fully respected at all stages of the proceedings.

Article 16 should be read in the context of other civil and political rights in Articles 13, 14, 15 of the Convention which immediately precede it and in the context of Article 17 which has no direct equivalent in earlier international human rights treaties but which stems also from the Freedom of expression guaranteed under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). In the CRC, this right is expressed separately and more emphatically as the child’s right to freedom of expression guaranteed in Article 13 and the child’s freedom of information rights as outlined in Article 17. Beyond a mere right to access and impart information Article 17 enjoins State Parties to ensure that the child’s access to mass media will promote his or her social, spiritual and moral well-being and physical and mental health.

Privacy rights should be interpreted in keeping with the CRC’s general principles in Articles 2, 3, 6 and 12 and with the several other rights where privacy interests are frequently in play, in particular Articles 7, 8, 9, 10, 11, 19, 20, 21, 22, 23, 24, 26, 27, 28, 32, 33, 34, 35, 36, 37 and 40.

Article 16 is framed in nearly identical terms to the privacy protections enshrined in other international human rights instruments such as the UN Declaration on Human Rights, the International Covenant on Civil and Political Rights, the Inter-American Human Rights Convention and the United States Bill of Rights.

Specifically, Article 16 is an affirmation of the human right to privacy of every person, including children proclaimed in the Universal Declaration of Human Rights in Article 12 and in the International Covenant on Civil and Political Rights Article 17, which are virtually identical in wording to the CRC’s provision. Article 11 of the Pact of San Jose, the American Convention on Human Rights, uses the same broad language but introduces both clauses with the affirmation that “Everyone has the right to have his honour respected and his dignity recognized”. Canadian courts also pay close attention to the case law under the European Human Rights Convention which affirms a less broadly worded privacy right in its Article 8

Interpretive Sources

Case Law

Consider decisions under the European Human Rights Convention which affirms a less broadly worded privacy right in its Article 8.

  • K.U. v. Finland, ECHR 2872/02 - a case involving an anonymous posting to internet exposing a 12 year old boy to the predation of paedophiles; found the state had failed to take sufficient measures to protect the child’s privacy rights under Art. 8 of the European Human Rights Convention.
  • The Queen on the Application of HC (a child, by his litigation friend CC) v. The Secretary of State for the Home Department and Another [2013] EWHC 982 (Admin) UK HCJ - the UK Court struck down statutory provisions which allowed police to arrest and detain a 17 year old as an adult as a violation of Art. 8 rights to privacy and family life protected under the European Human rights Convention as interpreted in light of the CRC provisions
  • Atala Riffo and daughters v. Chile, Inter-American Court of Human Rights Feb. 24, 2012 - the Court held that the state’s removal of the applicant’s three daughters following her decision to cohabitate with her same-sex partner constituted a violation of the children’s right to privacy and family life as protected by Article 11 of the Inter-American Human Rights Convention

Canadian Law


Case Law

The Supreme Court of Canada has commented frequently upon the nexus between privacy rights and liberty interests. In this regard, Article 16 and Article 17 of the CRC should often be interpreted with reference one to the other and also with reference to Article 19 of the ICCPR which proclaims everyone’s right to Freedom of expression and provides that “this right shall include freedom to seek, receive and impart information and ideas of all kinds”.

  • A.B. v. Bragg Communications Inc., [2012] 2 SCR 567, 2012 SCC 46. Should there be an exception to the open court principle that permits a child to bring a court action anonymously to seek disclosure of her cyberbully’s identity? Yes. The CRC privacy rights of young persons and the need to protect children from cyberbullying prevail. The Constitution protects the privacy of children not only via their Charter rights in ss. 7 and 8, but as a principle of fundamental justice given the presumption of their diminished moral culpability, and this fosters respect for dignity, personal integrity and autonomy of the young person.
  • R. v. A.M., [2008] 1 SCR 569, 2008 SCC 19. Are use of sniffer dogs at school deemed a violation of a student’s privacy? Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. Use of sniffer dogs by police may be Charter compliant if used on the basis of a standard of reasonable suspicion. See also: R. v. Kang-Brown, [2008] 1 SCR 456, 2008 SCC 18
  • R. v. M. (M.R.), [1998] 3 SCR 393, 1998 Canlii 770 (SCC). Students have a reasonable expectation of privacy at school but it is a lessened expectation while attending school or school functions.

Additional Cases