Women filmed by Ottawa ‘pick-up artist’ may have no legal remedy

A man films a woman. Stock photo by Getty Images

Ottawa women upset over their involuntary appearance in YouTube videos by a local “pick-up artist” may find any legal remedy hard to come by.

On the surface, it might seem straightforward: a guy records you without permission, using a hidden camera, then posts the videos on his YouTube channel. Sounds like a definite privacy violation.

One woman filed a police complaint, but Ottawa cops have pointed out that what he’s doing is not necessarily illegal. It depends on why he’s doing it, whether he’s profiting from it and other concerns. Even then, there’s a question of exactly which law he might be violating.

“Privacy law is very subjective,” explains Bernice Karn, a privacy lawyer with Cassels Brock in Toronto. “There’s all these different layers of statutory and common-law rules that could come into play depending on the circumstances.”

In fact, there are three different layers at work in a case like this: is he violating criminal law, the Personal Information Protection and Electronic Documents Act, or each individual woman’s common-law right to privacy?

One primary concern: is he making money off these clips? Anyone using such videos for commercial purposes definitely requires consent.

The pick-up artist in question, Luke Howard, claims to be more of a pick-up altruist. He says he "spreads the message that you can talk to people … you can be connected if we just get over our fears, our anxieties and social pressure."

Whether you believe that or not, he quickly concealed all his pick-up videos soon after the women spoke out, so he’s not making money on them at the moment. And if he tries to, he either needs consent or has to hide the identities of his targets.

If he’s not using them for commercial purposes, the women can argue “intrusion upon seclusion,” a relatively new tort geared towards extreme invasions of privacy. However, someone claiming “intrusion” has to show that they suffered mental anguish or humiliation, and the intruder’s behavior must be pretty invasive or outrageous for that argument to stand up in court.

“If he’s not engaged in commercial activity and his behaviour doesn’t rise to that offensive type of level, then [the women] may not have much of a remedy left to them,” Karn explains.

Of course, the obnoxiousness or offensiveness of some guy’s pick-up videos is a subjective measure. Some women might laugh it off, but others feel more violated. Regardless, Karn says these particular women don’t have many options for going after Howard.

“I don’t think getting legal redress for these women would be either straightforward or inexpensive,” she says. “They could complain to the privacy commissioner, but if he’s not doing it for commercial purposes, that’s where the PC’s jurisdiction will end.

“If they want to sue this guy, then they’re faced with limited case law on which to base a case and I doubt the damages they’ve suffered would be worth the aggravation.”

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