Windsor grocery store's anti-shoplifting methods might violate federal privacy law, experts say

A Windsor grocery store's anti-shoplifting methods might break federal law, according to some privacy experts. 

In addition to posting photos of alleged shoplifters on a large wall with the word "thief" written under the pictures, Multifood Supermarket on Crawford Avenue also plays videos of alleged thieves on a large, public-facing television screen. 

According to co-manager Song Che, the store struggles with shoplifting on an almost daily basis. Though he's complained to the police, he said they've failed to respond in an effective way. 

Since the store began showing videos of alleged shoplifters in action, Che said employees haven't had to worry as much about stolen merchandise, explaining that instances of shoplifting have dropped since the store introduced its video policy.

Multifood's approach probably a privacy violation, say lawyers

While Che and others who work at Multifood stand by the decision to publish videos and photos of alleged shoplifters, Dana Young, a lawyer with Windsor law firm Willis Business Law, said the grocery store's methods "probably [are] a violation of [the Personal Information Protection and Electronic Documents Act]."

As its name might imply, PIPEDA is a federal act that governs how private sector organizations are allowed to collect, use and disclose personal information gathered during the course of regular business. 

It's the same law that prevents businesses from sharing customers' personal information, including names, birth dates and addresses.

"The privacy commissioner has commented on this type of situation before, and has said that under privacy law ... photographs or video imagery constitute personal information," said Young. "So in order to be able to collect, use or disclose it, you need the person's consent."

Michael Power, a Toronto-based privacy lawyer who helped draft PIPEDA, said he was "horrified" when he learned about Multifood's anti-shoplifting methods, adding "clearly it's a violation of PIPEDA."

"What we have is the increasing commoditization of surveillance technology, and more and more businesses use it," he said." And now what we're seeing is a consequence, in this particular instance is a misuse of the video that's resulted from the surveillance."

Though the Office of the Privacy Commissioner of Canada (OPC) wouldn't comment on Multifood Supermarket's methods, the federal privacy commissioner previously determined in a 2015 investigation that "Publicly displaying, without consent, photographs of individuals recorded on a business' video surveillance system for the purposes of identifying alleged shoplifters is not permissible under PIPEDA."

Simply put, unless a store has permission, employees can't publish footage of alleged shoplifters — or any customer for that matter.

Young said there may be some exceptions pertaining to criminal behaviour under PIPEDA, adding "I'm not sure that that's been looked at by the Privacy Commissioner — that specific context."

... Clearly it's a violation of PIPEDA- Michael Power, Toronto-based privacy lawyer

Arguments could be made that signs informing customers that they will be recorded serve as a form of consent, but Young reiterated that "the general rule is that you do need consent."

Power said the argument that Multifood's photos and videos purport to show alleged criminals doesn't change the fact that the company is engaging in a potential PIPEDA violation. 

"It's alleged, they haven't been convicted, it's just alleged that they've been shoplifting," he said. "But even if they were, it's nonetheless personal information and it cannot be disclosed without consent or unless authorized by law."

"These shopowners are certainly not authorized by law to do this."

'I don't think it's really a big deal,' says one store owner

Gus Hermiz, who manages the Service Market on University Avenue, said he didn't think the managers of Multifood Supermarket are out of line with their anti-shoplifting methods.

"I don't think it's really a big deal," said Hermiz. "It kind of deters other shoplifters from possibly doing the same actions in your store."

Hermiz added that his own store used a similar method to catch a shoplifter who had broken in after hours.

"We posted a picture of the guy out in front of our store," Hermiz said. "A few days later, there were some customers that did identify him and give us his name, so we can actually give that information to the police, and he was apprehended for the crime."

Hermiz added that he feels it should be up to store owners to determine whether it's appropriate to publicize footage of shoplifters.

"Not everybody does it, but everybody's different also at approaching a situation the way they think they should handle it," he said. 

Windsor police would investigate privacy concern if complaint filed

Windsor police wouldn't comment on the legality of Multifood Supermarket's approach to tackling shoplifting, but Barry Horrobin, director of planning and physical resources with the force, said he supports property owners protecting themselves, so long as no laws are broken in the process.

"For me to personally say I endorse it, I would need to examine it more and dig a little deeper into some of the behind-the-scenes facts before I could make that statement," he said. "I encourage any property owner to be creative, if need be, to safeguard their property and themselves, but not to the point where they're breaking any rules to do so."

Staff Sgt. Steve Betteridge, public information officer with the Windsor police, also explained that the force investigates criminal matters, not civil matters like those that would fall under the jurisdiction of federal privacy law.

Nonetheless, Betteridge said the force would investigate a complaint filed by someone concerned about their identity shared in a photo or video released by Multifood.

Multifood Supermarket's Che said he's open to taking down photos and videos of alleged shoplifters if those individuals owned up to their alleged crime.

Young said that anyone concerned about a PIPEDA violation can file a complaint with the federal privacy commissioner through the OPC's online portal.