SCC Recognizes Expectation of Privacy in Text Message Conversations

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In the recent seminal decision R. v. Marakah, 2017 SCC 59, the Supreme Court of Canada (the “SCC”) established that Canadians have a reasonable expectation of privacy in the text messages they send, even after they have been received by the recipient. The majority opinion, which led 5-2 but with heavy dissent, recognized the privacy implications of electronic messaging in a ruling that is likely to have significant impact on both police investigations and individuals’ privacy rights.

In this ruling, the SCC adopted an approach that safeguards privacy even within the increasingly electronic world in which Canadians interact. The ruling is likely to have broad implications for privacy interests and can potentially be applied to other forms of digital communication such as e-mails, instant messages and direct messages on social media, as they all essentially have the same form and function as text messages. Messages that are encrypted or are password protected will favour a greater expectation of privacy and Canadians now have the right to expect their text messages will be private.

This content has been updated on May 2, 2024 at 14 h 11 min.