The Rise of the Charter Rights Auditor Provocateur: When Freedom of Expression Collides With the Privacy and Dignity of Children
CAVEAT: We recognize how upsetting and discouraging it can be when children, parents, and caregivers believe they are being deliberately targeted, recorded, and publicly exposed online, especially when police advise that the circumstances do not provide sufficient grounds for criminal intervention. Unfortunately, in some situations, conduct that families understandably find distressing may not meet the legal requirements necessary for criminal charges. However, the absence of a criminal offence does not necessarily mean that affected families are without options. This is why we believe it is important to also explore potential civil legal remedies that parents and caregivers may not know exist.
Here at The White Hatter, we strongly believe in and support the fundamental right to freedom of expression in Canada, including the right of individuals to hold and publicly communicate political, religious, philosophical, and personal beliefs that others may disagree with. Freedom of expression is an important foundation of a democratic society, and protecting that freedom includes recognizing that people have the right to express opinions that others may find controversial, unpopular, or offensive. We also believe that public accountability, citizen journalism, and the ability to document government officials performing their duties can serve legitimate democratic purposes. Our concern is not with the exercise of these rights, but rather with situations where recording may be used to deliberately provoke confrontations, target identifiable individuals, or expose children to unwanted public attention.
However, freedom of expression does not exist in isolation from the rights and interests of others, particularly children. The ability to record someone in a public place does not automatically establish an unrestricted right to deliberately target, repeatedly monitor, publicly identify, or expose that individual to online ridicule. Similarly, under Canadian law, a person participating in a private conversation can generally record that conversation without obtaining the consent of every other participant, subject to the circumstances and applicable legal requirements. However, the legal ability to make a recording and the legal right to publish that recording are two separate questions. The privacy, dignity, reputation, and safety of identifiable children may introduce additional considerations, particularly when recordings are made in connection with an existing disagreement and subsequently distributed to a potentially unlimited online audience.
We also want to make an important distinction. This article is not intended to suggest that every person who records in public, questions police authority, challenges government conduct, or documents matters of public interest is acting improperly. We are also not suggesting that every instance of unwanted public recording constitutes a violation of civil law. There is an important difference between conduct that is ethically questionable and conduct that meets the legal requirements for civil liability. Something can be inconsiderate, upsetting, or contrary to responsible digital citizenship without necessarily being unlawful. Conversely, conduct that initially appears legally permissible may, when examined in its full context, raise legitimate questions about privacy, defamation, or other civil legal obligations.
We want to be clear that we are not lawyers, and nothing in this article should be interpreted as legal advice. Our purpose is to raise awareness of potential civil legal remedies that parents and caregivers may not know exist, particularly when their children are being deliberately targeted, recorded, and publicly identified online. Whether a civil claim exists will depend on the evidence, the applicable law, and the particular circumstances. Our goal is to provide families with information they can bring to a qualified lawyer who specializes in privacy, defamation, and civil litigation to determine whether any of these legal avenues may apply to their specific situation. This article focuses on civil law, particularly the remedies potentially available in British Columbia, rather than determining whether any identifiable individual has committed a criminal offence or civil wrong.
The Rise of the “Charter Rights Auditor Provocateur”
Before we take a deep dive into this topic, we want to define what a “Charter Rights Provocateur” is specific to this article, so here’s our definition”
“An individual who invokes Charter protected freedoms while engaging in public recording activities that appear deliberately designed to provoke confrontations, generate emotional reactions, or attract online attention. Although the recording itself may be lawful, the individual’s conduct may raise ethical concerns and, depending on the circumstances, separate civil legal questions involving privacy, reputation, or the subsequent publication of recorded material.”
Over the past several years, a form of online content creation commonly described as “First Amendment Auditing” has gained attention and popularity in the United States. Individuals who participate in these activities often record interactions with police officers, government employees, security personnel, and members of the public while asserting their constitutional rights to film in public spaces. Some describe their activities as a means of testing government accountability, documenting the conduct of public officials, and educating viewers about constitutional protections. In Canada, we are now witnessing similar activities, sometimes described as “Charter Rights Auditing,” referencing the Canadian Charter of Rights and Freedoms rather than the American First Amendment.
There is an important distinction between the American and Canadian legal frameworks. The First Amendment to the United States Constitution and section 2(b) of the Canadian Charter both protect freedom of expression, but they are not legally interchangeable. Canada’s Charter also operates within a constitutional framework that permits reasonable limits on protected rights when those limits can be demonstrably justified in a free and democratic society. More importantly, neither constitutional framework should be interpreted as providing an unlimited entitlement to interfere with the lawful rights of other people simply because a camera is recording.
The concern arises when the objective of recording appears to shift from documenting matters of legitimate public interest toward deliberately generating confrontations that can be uploaded to social media. In this form of content creation, an individual may position themselves in a public location, begin recording people going about their daily activities, and continue filming when someone objects. The resulting confrontation may become the central focus of the video, sometimes accompanied by attention grabbing titles, commentary, editing, or thumbnails intended to attract viewers. Where a creator participates in social media monetization programs or receives financial support from viewers, increased engagement may also create a financial incentive to produce similar content. However, the existence of such incentives does not establish the motives of any particular individual.
For some creators, the possibility of attracting subscribers, generating advertising revenue, receiving donations, or increasing online engagement may provide an additional incentive to continue producing confrontational content. However, we should be careful not to assume that every person engaging in Charter rights auditing is motivated by money or deliberately attempting to provoke others. Those conclusions require evidence about the individual circumstances. There is also an important distinction between someone who records government officials for legitimate accountability purposes and someone who deliberately seeks out confrontations with private citizens for online attention. Although both may involve recording in public, their purpose, context, and potential legal consequences may be very different.
What concerns us most is the potential for this behaviour to move beyond interactions with public officials and into environments where children are present, particularly schools. There is a meaningful difference between recording a police officer performing public duties and deliberately recording identifiable children arriving for classes. Children are not government officials exercising public authority, and their ordinary attendance at school should not automatically make them participants in someone else’s online content. While this distinction does not automatically make the recording unlawful, we believe it raises important ethical questions and, depending on the circumstances, potentially relevant civil legal considerations.
When Children Become the Content
Imagine the following situation. An adult positions themselves on a public sidewalk outside a school and begins recording children and parents as they arrive for classes. The children are identifiable, the school is recognizable, and the recording includes video and potentially audio. The individual subsequently uploads the footage to social media, accompanied by commentary. In some circumstances, the recording may be incidental to documenting a broader public issue. In others, particular children or families may be deliberately selected because of an existing disagreement, and the accompanying commentary may criticize, ridicule, or make allegations about them. Although these situations may appear similar on the surface, the distinctions between them can become important when considering potential civil liability.
This is where the conversation needs to move beyond the simplistic assertion that someone was standing on public property and therefore had the right to record whatever they wanted. Public property is certainly relevant to the legal analysis, but it is not necessarily the end of that analysis. The manner of recording, the deliberate selection of particular children, the surrounding circumstances, the purpose of publication, and the potential consequences may all become important when considering whether civil legal remedies are available. At the same time, we must acknowledge that Canadian law does not generally require parental consent every time someone photographs or records a child in a public place. The absence of consent, even when the recording is subsequently published, does not automatically establish civil liability.
We also need to recognize the difference between a child’s ability to be seen in public and their reasonable expectation that they will not become the subject of intrusive surveillance. A child walking into school may reasonably expect to be observed by other students, parents, teachers, and members of the public. However, that does not necessarily mean every form of deliberate monitoring or subsequent publication is legally permissible. The challenge is determining whether the particular circumstances cross a recognized legal threshold, rather than assuming that public visibility either eliminates all privacy interests or creates an automatic right to prevent recording.
This concern may become particularly significant for some children and youth in government care, including those who have been relocated because of abuse, family violence, or other safety concerns. When someone records and publicly shares identifiable footage of these children entering or leaving school, they may unknowingly reveal the child’s current location to an abusive parent, family member, or another individual from whom the child is being protected. What may appear to the person recording as an ordinary video taken in a public place could unintentionally compromise carefully established safety arrangements and expose an already vulnerable child to renewed risk. This example illustrates why the consequences of public recording may extend beyond what the person holding the camera understands. However, the existence of such a risk does not automatically establish civil liability, and any legal claim would still need to satisfy the applicable requirements.
Given the recent tragic history of school shootings in both Canada and the United States, it is understandable that children, parents, caregivers, and educators have become increasingly vigilant about situations that may raise concerns for student safety. This heightened awareness is particularly relevant when an unfamiliar adult is observed deliberately recording children as they enter or leave school. Although recording from public property is not, by itself, evidence of a threat or criminal wrongdoing, we should not dismiss the genuine fear or anxiety that such behaviour may create for children and their families. In today’s school environment, where student safety is understandably a significant concern, the presence of someone deliberately filming identifiable children may be perceived very differently from an ordinary person taking photographs in public.
Although public recording does not, by itself, indicate a threat or criminal wrongdoing, the circumstances may still cause distress, particularly when the recording is directed at specific students or connected to an existing dispute. However, the appropriate response should be based on the individual’s observable conduct and any credible safety concerns rather than assumptions about their intentions. We believe this distinction is important because parents and caregivers should be able to raise legitimate concerns about their children’s safety without automatically characterizing every person recording in public as dangerous.
Recording, Publishing, and Commentary: Three Different Legal Questions
One of the most important distinctions for parents and caregivers to understand is that the act of recording someone, the subsequent publication of that recording, and the commentary accompanying the publication are not necessarily governed by the same legal considerations. These are three related but separate questions, and the answer to one does not automatically determine the answer to the others.
The first question is whether the recording itself was lawful. In many circumstances, recording people who are visible in public will not, by itself, constitute a civil wrong. However, particular forms of deliberate surveillance may raise privacy concerns depending on the manner, duration, purpose, and surrounding circumstances. The fact that someone is standing on public property is relevant, but it does not necessarily resolve every legal question about how the recording was obtained.
The second question concerns publication. A recording that was lawfully made does not automatically create an unrestricted right to use or distribute it in every conceivable way. At the same time, Canadian law does not establish a general prohibition against publishing recognizable images of children simply because parental consent was not obtained. Whether publication creates civil liability depends on the existence of a recognized legal claim and the specific circumstances surrounding the material.
The third question involves the commentary accompanying the recording. A video may be lawfully recorded and published, yet the words, captions, editing, or allegations accompanying it could potentially create a separate defamation issue. Conversely, a video that someone finds embarrassing or offensive does not automatically become defamatory merely because the individual is recognizable.
For parents and caregivers, understanding these distinctions is important because it helps identify which aspects of a situation may warrant legal review. Rather than asking only whether someone had the right to record, the more useful questions may be how the recording was obtained, what was subsequently published, and whether the publication violated a legally protected privacy or reputational interest.
The British Columbia Privacy Act: An Important Civil Protection Ans Possible Avenue To Explore
When individuals are deliberately recording children or others in public spaces, police are often the first authorities contacted by concerned parents, caregivers, teachers, or community members. However, many individuals who engage in what is commonly referred to as Charter rights auditing have a working understanding of the legal boundaries surrounding public recording and recognize that filming from public property is not, by itself, generally a criminal offence in Canada. As a result, police may have limited grounds to intervene unless the individual’s conduct meets the legal elements of a specific criminal offence. Some individuals may also be careful to operate within what they understand those boundaries to be, even when their behaviour is deliberately provocative, confrontational, or distressing to those being recorded. What is important for parents and caregivers to understand, however, is that the absence of criminal wrongdoing does not necessarily mean the conduct is free from potential civil legal consequences.
For families in British Columbia, one of the first pieces of legislation worth understanding and investigating is the provincial Privacy Act. This legislation establishes a civil cause of action for certain violations of privacy, meaning that an affected individual may be able to seek a remedy through the courts without first establishing that a criminal offence occurred. However, the Act does not create a general prohibition against photographing or recording people in public, and it should not be interpreted as guaranteeing a successful claim simply because someone was deliberately recorded without their consent.
Section 1(1) of the Act states that it is a tort, actionable without proof of damage, for a person to wilfully and without a claim of right violate another person’s privacy. A tort is a civil wrong for which the law may provide a remedy, including monetary damages or, in appropriate circumstances, an injunction. The phrase “actionable without proof of damage” is important because it means that a claimant does not necessarily have to establish a measurable financial loss before bringing a privacy claim. However, the claimant must still establish that a legally recognized violation occurred, and the absence of a requirement to prove financial loss does not guarantee that substantial damages will be awarded.
Section 1(2) further explains that the nature and degree of privacy to which someone is entitled must be assessed in light of what is reasonable in the circumstances. This is especially important when recording takes place in a public setting. A person’s privacy expectations while walking along a public sidewalk will generally differ from those they might reasonably have inside their home, a washroom, or another private location. Nevertheless, privacy is not necessarily an all or nothing concept, and the fact that someone is visible to the public does not automatically resolve every question about surveillance.
Of particular relevance is section 1(4), which recognizes that privacy may be violated through surveillance or eavesdropping, whether or not trespassing occurs. This means that remaining on public property does not, by itself, provide a complete defence to every allegation of intrusive surveillance. However, it is equally important to recognize that the provision does not automatically transform every instance of deliberate public recording into an unlawful invasion of privacy.
In the school scenario described earlier, a court might examine whether the adult was simply recording a public event or deliberately selecting identifiable children for surveillance because of an existing dispute. It might also consider whether the conduct occurred once or repeatedly, whether the individual followed or focused on particular children, the duration and intrusiveness of the recording, and whether the circumstances created a reasonable expectation of privacy. These considerations could become relevant to determining whether the recording crossed the legal threshold from ordinary public observation into an actionable invasion of privacy.
However, another important consideration involves section 2 of the Privacy Act, which sets out circumstances in which conduct will not constitute a violation of privacy. Depending on the facts, these provisions may become relevant where an individual argues that the recording or publication was connected to a matter of public interest or the exercise of a lawful right or interest. Such arguments would not automatically succeed, but they demonstrate why a privacy claim can be more complicated than simply establishing that a child was recorded without consent.
There is also an important distinction between obtaining information and publishing it. The Privacy Act contains provisions addressing certain publications made in the public interest, but a defence relating to publication does not necessarily excuse an independently unlawful intrusion used to obtain the information. Consequently, the recording and the subsequent social media publication may require separate legal analysis.
For parents and caregivers, the practical lesson is that a public sidewalk is not necessarily a legal shield against every civil privacy claim. However, neither is the deliberate recording of a child an automatic violation of the Privacy Act. The strongest approach is to preserve the relevant evidence and consult a qualified lawyer who can assess whether the specific conduct meets the statutory requirements and whether any exceptions or defences may apply.
Defamation: When Online Commentary Damages a Child’s Reputation
Another important area of civil law is defamation. This becomes particularly relevant when a recording is uploaded to social media with commentary that identifies, criticizes, ridicules, or makes allegations about particular children. However, parents and caregivers should understand that simply appearing in an embarrassing video or being subjected to criticism does not automatically establish defamation. The material must communicate a meaning that meets the legal requirements for a defamatory statement.
In Canadian common law, a defamation claim generally requires the claimant to establish that the communication would tend to lower their reputation in the eyes of a reasonable person, that the communication referred to them, and that it was published to at least one person other than the claimant. A social media video can satisfy the publication requirement because the material is made available to other people. However, whether the accompanying commentary is legally defamatory depends on its actual content, meaning, and context.
For example, consider a video showing a recognizable student entering school while the narrator accuses that student of engaging in bullying, dishonesty, criminal behaviour, or other serious misconduct. Depending on the circumstances, those allegations could potentially harm the child’s reputation and support a civil defamation claim. The fact that the child is under 18 does not prevent them from having legally protected reputational interests. However, the claim would still need to satisfy the applicable legal requirements, and the person responsible for the publication may have defences available.
An important distinction is that Canadian defamation law does not generally require a plaintiff to prove, as an initial element of the claim, that the published statement was false. Once the required elements of defamation are established, the defendant may rely on available defences, including truth, fair comment, or qualified privilege. This distinction is important because the legal analysis is not simply whether a parent believes the commentary is inaccurate or unfair. The question is whether the publication communicates a defamatory meaning and whether a legally recognized defence applies.
Defamation can also arise through implication. A video does not necessarily need to contain an explicit accusation if its editing, captions, imagery, or commentary communicate a defamatory meaning to a reasonable viewer. For example, selectively edited footage accompanied by misleading commentary could potentially create an impression that a child engaged in misconduct when the full context tells a different story. In such circumstances, the overall meaning conveyed by the publication may be more important than any single sentence considered in isolation.
At the same time, we need to be clear that criticism, ridicule, offensive language, and expressions of disagreement are not automatically defamatory. Canadian law recognizes important protections for freedom of expression, including the ability to express opinions that others may strongly disagree with. A person may express a harsh opinion about another person’s conduct without necessarily committing a civil wrong. Whether a statement crosses the legal threshold depends on its meaning, the surrounding context, and the applicable defences.
This distinction matters because parents understandably may find public criticism of their children upsetting, but emotional distress alone does not establish defamation. The actual words, video content, and context must be examined carefully. Where identifiable children are subjected to public allegations that may damage their reputations, families may wish to consult a civil litigation lawyer who has experience in defamation and online publication. Depending on the circumstances, potential remedies may include damages, requests for corrections or retractions, and court orders addressing continued publication.
What About the Charter Right to Freedom of Expression?
One argument frequently raised by individuals who describe themselves as “Charter Rights Auditors” is that section 2(b) of the Canadian Charter of Rights and Freedoms protects their ability to record in public and publish the resulting footage.
Freedom of expression is indeed constitutionally protected, and that protection extends to expression that others may find offensive or controversial. This is why the phrase “lawful but awful” can sometimes describe conduct that people find objectionable but that does not necessarily violate the law. However, section 2(b) does not create an unrestricted right to record or publish information in every circumstance, nor does it automatically provide immunity from civil liability.
The Charter primarily governs government action rather than creating unrestricted rights against other private individuals. In civil disputes involving privacy or defamation, courts may nevertheless consider freedom of expression principles and Charter values when interpreting and applying the law. Consequently, an individual’s interest in recording or publishing information about a matter of public concern must be considered alongside any legally protected privacy or reputational interests of those appearing in the material.
For example, Canadian defamation law exists alongside constitutional protections for freedom of expression. Courts must consider the importance of expression while also recognizing that individuals have legitimate reputational interests. Similarly, privacy legislation may establish civil remedies in circumstances where conduct unlawfully interferes with another person’s privacy. A person may therefore have a constitutionally protected interest in recording and discussing matters of public concern while still being subject to applicable civil laws governing privacy and reputation.
We believe this distinction becomes particularly important when children are involved. A child entering school is not performing a public governmental function. Although the child’s presence in a public location may reduce certain privacy expectations, it does not automatically mean that every form of targeted surveillance or publication is legally protected. Equally, the fact that a child is identifiable in a recording does not automatically establish that the person recording has violated the law.
We should also recognize that recording genuine matters of public interest may receive significant legal protection. A person documenting a public demonstration, school board controversy, or legitimate safety concern may be exercising important expressive rights. The fact that children appear in such footage does not automatically make the recording unlawful. We believe the legal question is whether the particular conduct, considered in context, violates an applicable civil law despite the expressive interests involved. Again, this is a question that should be discussed with a qualified lawyer rather than assumed to have a straightforward answer.
Social Media Monetization and the Incentive to Provoke
An additional concern involves the possibility that confrontational recording may be used to generate online engagement or revenue. Social media platforms can reward content that attracts attention, including through advertising, subscriptions, donations, and other monetization opportunities. In an online environment where attention can have financial value, confrontational content may create incentives that are not always aligned with respectful communication or responsible digital citizenship.
When confrontations attract views, comments, and shares, creators may have an incentive to produce more of the same content. This does not mean that every person recording public interactions is financially motivated, nor does it establish that a particular creator is earning money. However, the possibility of monetization raises an important ethical question when identifiable children become the subjects of these videos.
We believe the question parents and caregivers should be asking is this, “Should a disagreement involving children become material for public entertainment or potential commercial gain simply because an adult can legally stand on a sidewalk with a camera?” We believe this is a reasonable question, particularly when the children involved have not chosen to participate in the recording or its publication.
There is also an important legal distinction between monetization and liability. The fact that someone earns revenue from a social media video does not automatically make the recording unlawful or establish a civil privacy violation. However, evidence of commercial purpose may become relevant to the broader factual context and, in certain circumstances, to the assessment of damages or other legal issues.
Parents and caregivers should therefore avoid assuming that monetization alone establishes wrongdoing. The focus should remain on whether the recording, publication, and accompanying commentary violate a recognized legal obligation.
When Online Provocation Becomes a Business: What the CRA Says About Monetized Content
Another consideration that parents and caregivers may not be aware of is that individuals who financially benefit from publishing videos on social media platforms may also have obligations under Canadian tax law. The Canada Revenue Agency (CRA) has specifically addressed the growing social media influencer economy and made it clear that Canadian residents who earn income through online content creation must generally report those earnings for income-tax purposes. This includes revenue generated through advertising, paid subscriptions, channel memberships, sponsorships, viewer donations, tips, and other financial benefits connected to their online activities. Importantly, these obligations are not limited to individuals who describe themselves as professional influencers. Someone who operates a social media channel dedicated to recording confrontations with police officers, government employees, or members of the public may also fall within these reporting requirements if their activities generate taxable income.
The CRA also makes an important distinction between income tax reporting and GST/HST obligations. Although certain businesses may not be required to register for GST/HST until their taxable supplies exceed the applicable $30,000 small supplier threshold, this does not mean that income below that amount is exempt from income tax reporting. Even relatively modest earnings from online content creation may need to be declared. The CRA also recognizes that financial contributions described as donations, gifts, or tips may constitute reportable business income when received in connection with commercial social media activities. However, we should be equally clear that operating a social media channel, attracting subscribers, or receiving substantial views does not automatically establish that someone is earning money or failing to meet their tax obligations.
Here at The White Hatter, we believe this is another important part of the broader conversation surrounding the monetization of confrontational online content. When recording and publishing public encounters becomes a source of income, financial incentives may influence the type of content some creators choose to produce. However, the existence of those incentives does not establish the motives or tax compliance of any particular individual. Our purpose in raising this issue is not to suggest wrongdoing, but rather to highlight that individuals who seek to financially benefit from publishing content involving other people, including identifiable children, may have responsibilities extending beyond the right to operate a camera in a public place. Freedom of expression is an important constitutional protection, but it does not exempt income generating online activities from applicable Canadian tax reporting requirements.
Could this provide another avenue for parents and caregivers to consider? Potentially. Where there is credible information suggesting that an individual is generating income from online content but may not be meeting their tax reporting obligations, the CRA does have mechanisms for reporting suspected tax non-compliance. However, operating a monetized social media channel does not, by itself, suggest that someone is failing to report their earnings. Any concerns brought forward should be based on credible information rather than assumptions or frustration with the individual’s behaviour. It is also important to recognize that reporting suspected tax non-compliance is separate from pursuing civil remedies and would not directly address the recording or publication of identifiable children.
So, What Else Can Parents and Caregivers Do?
When parents discover that their child has been deliberately recorded and publicly identified by someone engaging in Charter rights auditing or other forms of confrontational public recording, where the police advise there is nothing they can do criminally, we recommend responding carefully and methodically rather than engaging in a public confrontation. Although it is understandable that parents and caregivers may feel angry, protective, or frustrated, the objective should be to protect the child, preserve relevant evidence, and determine whether an appropriate remedy is available.
1/ Preserve the available evidence. This may include the original social media URL, video title, upload date, screenshots of relevant commentary, identifiable timestamps, and any public comments encouraging others to target the child. Parents should also document whether the recording was a single incident or part of a repeated pattern. Where possible, preserve the original context rather than relying exclusively on isolated screenshots or short clips, as the surrounding material may become important when assessing the meaning of the publication.
2/ Document the impact on the children. Parents should record any relevant consequences without assuming that every negative experience necessarily establishes legal harm. If the child is experiencing anxiety about attending school, unwanted contact, reputational harm, or other consequences, those circumstances may be relevant to discussions with legal counsel or appropriate support professionals. The purpose is not to exaggerate the impact but to create an accurate record of what has occurred.
3/ Consider proportionate responses before litigation. Depending on the circumstances, a lawyer may recommend a formal demand letter, a request for correction or removal, a negotiated undertaking, or another approach intended to resolve the matter without immediately commencing a lawsuit. Civil litigation is not always the most practical or cost effective first step, particularly where the primary objective is to stop ongoing publication or prevent further harm.
4/ Consult a qualified civil litigation lawyer where appropriate. Where the conduct is serious or ongoing, a lawyer experienced in privacy law, defamation, or civil litigation can assess whether the available evidence supports a recognized legal claim and whether remedies such as damages or an injunction may be available. A lawyer can also help families understand the financial costs, evidentiary requirements, possible defences, and likelihood of obtaining an enforceable remedy.
We would also discourage parents from responding by publicly identifying or ridiculing the person responsible for the recording. Although frustration and anger are understandable, escalating the dispute online may expose children to additional attention and complicate efforts to resolve the matter. Public confrontations may also generate additional content and attention, potentially prolonging the dispute. The objective should be to protect the child, preserve relevant evidence, and pursue appropriate remedies rather than creating another confrontation that becomes content for someone else’s social media channel.
Another important consideration is that individuals engaging in provocative public recording may use multiple cameras, microphones, or other recording devices, some of which may be clearly visible while others are less obvious. These devices may capture interactions from several angles, including what is happening behind the person recording. Parents, caregivers, and community members who confront these individuals should therefore be mindful that their words and actions may also be recorded, edited, and subsequently published online. If, during a heated exchange, someone makes allegations about the individual that cannot be substantiated, particularly allegations that could damage their reputation, they may inadvertently expose themselves to a potential civil defamation claim. Even where such a claim ultimately proves unsuccessful, the financial and emotional costs of defending a civil lawsuit can be significant. For this reason, we encourage families to avoid confrontations, refrain from making unverified accusations, and instead focus on documenting concerns and pursuing appropriate remedies.
Understanding the Financial Realities of Civil Litigation
Unfortunately, pursuing a civil legal remedy can come at a significant financial cost to the plaintiff, and litigation is rarely inexpensive. Legal fees, court expenses, the time required to prepare evidence, and the possibility of being responsible for some of the opposing party’s legal costs can all become important considerations. Even where a family believes they have a legitimate claim, the financial and emotional demands of litigation may outweigh the potential benefits, unless the lawyer is willing to take on your case “Pro Bono”.
Another practical consideration is that even if a court awards monetary damages, the individual responsible may have limited financial resources or assets against which a judgment can be enforced. In such circumstances, obtaining a favourable court decision does not necessarily mean that the plaintiff will recover the compensation awarded. A successful judgment and the ability to collect that judgment are two separate matters, and this distinction is particularly important when considering litigation against an individual rather than an organization with substantial financial resources.
However, financial compensation is not always the primary objective of civil litigation. In some cases, families may be more concerned about stopping ongoing conduct, preventing further publication, or protecting their child’s privacy than recovering money. This is where the possibility of a civil injunction may become relevant, although obtaining one is neither automatic nor necessarily straightforward.
Could a Civil Injunction Provide Another Option?
A civil injunction is a court order that may require an individual to stop engaging in specified conduct or, in appropriate circumstances, take particular action. Depending on the legal claim and evidence, an injunction might be sought to address ongoing unlawful surveillance, continued publication of certain material, or other conduct that a court determines warrants such relief.
However, parents and caregivers should understand that an injunction is not automatically available simply because a recording is upsetting, unwanted, or considered unethical. Courts apply specific legal tests, and the requirements can differ depending on the type of injunction being requested. For certain interim injunctions, courts may consider whether there is a serious legal issue to be tried, whether the applicant faces harm that cannot adequately be remedied through monetary damages, and whether the balance of convenience favours granting the order. In other circumstances, particularly where an injunction would effectively determine the dispute before trial or compel affirmative action, a more demanding legal standard may apply.
Applications involving restrictions on publication may also face additional scrutiny because of freedom of expression considerations. Courts are understandably cautious about restricting expression, particularly before the underlying legal dispute has been fully resolved. Consequently, a family seeking removal of a video or an order preventing future publication would need legal advice about the specific requirements and whether the available evidence supports that remedy.
Depending on the circumstances and the terms of the order, enforcement mechanisms may also be available, including potential consequences for contempt of court if an injunction is deliberately violated. However, police enforcement is not automatically attached to every civil injunction, and any police assistance or enforcement provisions would need to be specifically authorized and legally appropriate. Families should not assume that obtaining an injunction means police will automatically intervene whenever they believe the order has been breached.
For families seeking to protect their children from ongoing targeted behaviour, an injunction may therefore be worth discussing with a qualified civil litigation lawyer, even when recovering financial damages is unlikely. However, the potential benefits must be weighed against the cost, complexity, and uncertainty of obtaining and enforcing such an order.
When Public Recording Becomes a Question of Children’s Rights
The rise of “Charter Rights Auditing” raises legitimate questions about the boundaries between public accountability, freedom of expression, privacy, and responsible online behaviour. We should defend the right of individuals to record matters of legitimate public interest, challenge government conduct, and express opinions that others may disagree with. These protections are important, and we should be cautious about allowing discomfort with a person’s message to become the basis for restricting lawful expression.
However, we should be equally cautious about accepting the argument that standing on public property gives someone an unrestricted entitlement to deliberately target identifiable children, record their movements, and publish videos intended to expose them to ridicule or unwanted attention. The legal reality is more complicated, and the circumstances surrounding the recording and publication may be just as important as the location where the camera was positioned.
In British Columbia, the Privacy Act may provide civil remedies where surveillance constitutes an unlawful invasion of privacy. Defamation law may provide remedies where published commentary unlawfully damages a child’s reputation. However, neither avenue automatically guarantees a successful claim. Each requires consideration of the actual facts, applicable legal standards, and available defences. Parents and caregivers should also recognize that the financial cost of pursuing civil litigation, the difficulty of obtaining an injunction, and the possibility that a defendant may have limited assets can all affect whether legal action is practical.
We believe there is an important distinction between conduct that is ethically questionable and conduct that creates civil legal liability. Deliberately recording a child for online attention may be inconsiderate, upsetting, or contrary to responsible digital citizenship without necessarily meeting the legal requirements for a successful lawsuit. Conversely, conduct that appears superficially lawful may, when examined in its full context, give rise to a recognized civil claim. Parents and caregivers should therefore avoid assuming that every harmful online interaction has a legal remedy, while also recognizing that the absence of criminal charges does not settle every civil-law question.
Here at The White Hatter, we believe the conversation should ultimately return to a simple but important principle. Children should be able to attend school without unnecessarily becoming unwilling participants in an adult dispute or someone else’s attempt to generate online attention. Although the law may permit certain forms of public recording, we believe adults should consider the potential consequences of their actions, particularly when identifiable children are involved and when the purpose of the recording has little to do with legitimate public accountability.
We can support freedom of expression while also recognizing that deliberately targeting children for social media clicks raises serious ethical concerns and may, depending on the circumstances, create civil legal consequences. These are not contradictory positions. They reflect the reality that rights and responsibilities must coexist in a society that values both individual freedom and the dignity of others.
Freedom of expression is an important right. Respecting the privacy, dignity, and reputation of children is an equally important responsibility. Understanding where those interests intersect is part of what responsible digital citizenship should look like.
Digital Food For Thought
The White Hatter
Facts Not Fear | Facts Not Emotions | Enlighten Not Frighten | Know Tech Not No Tech
References and Additional Reading
British Columbia Privacy Act Province of British Columbia.
Canadian Charter of Rights and Freedoms, Section 2(b)
Department of Justice Canada.
