Privacy and Reporting Child Abuse
By: Charles Kopel
Privacy law came to the fore last month in Ontario, when two provincial government officials undertook a new public awareness campaign. Privacy Commissioner Brian Beamish teamed up with Advocate for Children and Youth Irwin Elman to improve responses to situations of suspected child abuse by “dispelling myths surrounding information sharing with children’s aid societies.”
As reported by the Toronto Star, the project’s immediate motivation was a coroner’s inquest into the tragic 2002 starvation death of five-year-old Jeffrey Baldwin. Baldwin died in the care of his maternal grandparents, who were subsequently convicted of second-degree murder and sentenced to life in prison. The inquest jury discovered that police officers and school board officials who had knowledge of Baldwin’s predicament did not know what private information they were legally permitted to share with children’s aid workers. In response to the jury’s call for clarification of this legal standard, Beamish and Elman have published a 15-page educational booklet, titled Yes, You Can, and distributed it to relevant public servants. A link to the booklet can be found in the Star article.
The principle is very straightforward: Under Ontario law, any person who reasonably suspects that a child is in need of protection must report the situation to a children’s aid society. In the face of such situations, all privacy law restrictions fall away. If necessary, teachers must divulge schooling records, healthcare professionals must divulge medical records, police must divulge criminal records, and social services staff must tell investigators all pertinent information.
I was drawn to this story by my interest in child welfare law, and I see it as a useful illustration of the practical relevance of privacy rights to diverse circumstances and concerns. The rules of privacy law impact and complicate legal determinations in many areas outside of the major bodies of jurisprudence of consumer privacy and law enforcement.
This story also provides an interesting glimpse of societal attitudes towards privacy rights, if only anecdotally. In a humorous moment in the Star article, Beamish is quoted as saying, “As privacy commissioner, I’m glad people have (privacy) top of mind, but there are occasions (when) not only may information be disclosed, but it must be disclosed…” It seems that, despite the typical lack of zealousness for protecting personal data on the Internet, Western people do have an intuitive sense for the inviolability of the private information of others, even when the social utility of exposing that information is as clear as in this case. A hierarchy of values emerges from the legal conclusion here, subordinating the child’s interest in informational privacy—in being “let alone”—to his/her interest in freedom from bodily and severe emotional harm.