JRSB205 (summer 2010)
Topic 3, Lesson 1, Activity 2: Invasion of Privacy
Group E
Identify when a plaintiff can sue in British Columbia for breach of privacy. What specifically must be proven to succeed? What remedies for invasion of privacy are available in this province?
In provinces with a statutory tort of invasion of privacy, specifically BC courts have generally rejected the notion that there is an independent tort of invasion of privacy at common law. Courts in BC have often indicated that if there is a right to sue for invasion of privacy, then that right is found under the relevant statutory tort in the province. Outside of these provinces, including in Ontario as discussed in the preceding section of this Article, courts have been inconclusive as to whether the common law includes an independent privacy tort. In Dyne Holding Ltd. v. Royal Insurance Co. of Canada, for example, the PEI Supreme Court, Appeal Division stated that, “it would seem to me that courts in Canada are not far from recognizing a common law right of privacy if they have not already done so”. When considering the potential scope of an independent tort of invasion of privacy at common law, it is worth considering briefly what the statutory torts provide for in Canada. A full review of the provincial statutory torts is beyond the scope of this short article. Though the statutory torts in all four provinces are nearly identical, only British Columbia’s legislation is considered here [2].
Under the BC Privacy Act (see Appendix A), it is a tort “actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another”. The BC Privacy Act states that individuals are only entitled to a reasonable expectation of privacy and that the “nature, incidence and occasion” of the act complained of must, among other things, be considered. The BC Privacy Act imposes a number of additional common sense limitations on the tort. For example, it states inter alia that an act is not a violation of privacy if it is consented to, if it was incidental to a lawful defence of person or property, if it was authorized or required by law or a court, or if it was a publication of a matter that was fair comment or in the public interest. B.C. case law may provide further guidance for the development of a common law tort of invasion of privacy.
In Heckert v. 5470 Investments Ltd., for example, the B.C. Supreme Court engaged in an in-depth discussion of the concept of privacy. The definition of, and right to, privacy had been addressed by the B.C. courts in 1968, shortly after the Privacy Act was first created.
Relying on U.S. case law and text books, the courts defined privacy as the following:
The right to be let alone, the right of a person to be free from unwarranted publicity […] The right of an individual (or corporation) to withhold himself and his property from public scrutiny, if he so chooses.[2]
Despite anything contained in another Act, an action under this Privacy Act [1] must be heard and determined by the Supreme Court. An action or right of action for a violation of privacy or for the unauthorized use of the name or portrait of another for the purposes stated in this Act is extinguished by the death of the person whose privacy is alleged to have been violated or whose name or portrait is alleged to have been used without authority.
In Lord v. McGregor and A-G of Canada [3], we can read: “Although the right to privacy is well entrenched in American tort law, the Canadian and English courts have been reluctant to recognize a separate right to privacy. Even the great innovator Denning M.R. has declared, "[W]e have as yet no general remedy for infringement of privacy." This statement may not be as accurate as it once was. One Canadian court has recognized a general right to privacy. Several trial judges have refused to dismiss actions for the invasion of privacy at the pleading stage on the ground that it has not been shown that our courts will not create a right to privacy. We seem to be drifting closer to the American model.”
Remedies would cover the full range of privacy issues, rather than just the protection of personal information, but they would not set out detailed rules. The remedies would be non-judicial in the sense that it would be an administrative agency, rather than the courts, that was given the authority to resolve privacy disputes and develop privacy standards.
Judicial Remedies is applied in countries such as England, Australia and Canada there have been several studies of the similar judicial remedies that are available for the protection of privacy interests. The shared background of these studies is that there is no established remedy for an invasion of privacy as such, but that privacy interests can be protected through a number of other remedies such as actions for trespass or for breach of confidence [4].
In Canada the discussion has some special features. One is that five Provinces have in fact legislated to create a specific tort of invasion of privacy. Four of these -- BC, SK, MB and NL -- are common law provinces where the remedy was new. The fifth is QC, where the remedy originally evolved through interpretation of general provisions of civil responsibility in the former Civil Code, but has now been expressly included in the new one. Quebec’s Charter of Human Rights and Freedoms also contains, as art.5, a provision that "Every person has a right to respect for his private life." Unlike the Canadian Charter, this provision is directly enforceable between citizens.
Another special feature of the Canadian debate is that in the common law provinces where there is at present no legislation, the courts have recently become more willing to consider that perhaps a general tort of invasion of privacy may exist at common law [4].
The existing legal remedies for invasion of privacy are found under the Canadian Charter of Rights and Freedoms, under various federal and provincial Acts and in various existing torts. None of these contains an established and general remedy for 'invasions of privacy' as such. As was mentioned above, there is currently a theoretical debate as to whether, at common law, a general tort of 'invasion of privacy' exists, but if it does, it is certainly not yet "established." By contrast, the other remedies that will be referred to are clearly "established," and can be used to protect some privacy interests, but they are not "general." [4]
[1] Privacy Act, R.S.B.C. 1996, c. 373. Retrieved June 3, 2010, from http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-373/latest/rsbc-1996-c-373.html#section2
[2] The Legal Dictionary. Retrieved June 3, 2010, from http://www.fasken.com/
[3] Lord v. McGregor and A-G of Canada, 2000 BCSC 750
[4] Department of Justice, NB. Retrieved June 3, 2010, from http://www.gnb.ca/
Appendix A – British Columbia Privacy Act
Citation: Privacy Act, R.S.B.C. 1996, c. 373
Privacy Act
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Violation of privacy actionable
1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.
(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.
2 (1) In this section:
"court" includes a person authorized by law to administer an oath for taking evidence when acting for the purpose for which the person is authorized to take evidence;
"crime" includes an offence against a law of British Columbia.
(2) An act or conduct is not a violation of privacy if any of the following applies:
(a) it is consented to by some person entitled to consent;
(b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property;
(c) the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court;
(d) the act or conduct was that of
(i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime or to discover or apprehend the perpetrators of a crime, or
(ii) a public officer engaged in an investigation in the course of his or her duty under a law in force in British Columbia,
and was neither disproportionate to the gravity of the crime or matter subject to investigation nor committed in the course of a trespass.
(3) A publication of a matter is not a violation of privacy if
(a) the matter published was of public interest or was fair comment on a matter of public interest, or
(b) the publication was privileged in accordance with the rules of law relating to defamation.
(4) Subsection (3) does not extend to any other act or conduct by which the matter published was obtained if that other act or conduct was itself a violation of privacy.
Unauthorized use of name or portrait of another
3 (1) In this section, "portrait" means a likeness, still or moving, and includes
(a) a likeness of another deliberately disguised to resemble the plaintiff, and
(b) a caricature.
(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.
(3) A person is not liable to another for the use for the purposes stated in subsection (2) of a name identical with, or so similar as to be capable of being mistaken for, that of the other, unless the court is satisfied that
(a) the defendant specifically intended to refer to the plaintiff or to exploit his or her name or reputation, or
(b) either on the same occasion or on some other occasion in the course of a program of advertisement or promotion, the name was connected, expressly or impliedly, with other material or details sufficient to distinguish the plaintiff, to the public at large or to the members of the community in which he or she lives or works, from others of the same name.
(4) A person is not liable to another for the use, for the purposes stated in subsection (2), of his or her portrait in a picture of a group or gathering, unless the plaintiff is
(a) identified by name or description, or his or her presence is emphasized, whether by the composition of the picture or otherwise, or
(b) recognizable, and the defendant, by using the picture, intended to exploit the plaintiff's name or reputation.
(5) Without prejudice to the requirements of any other case, in order to render another liable for using his or her name or portrait for the purposes of advertising or promoting the sale of
(a) a newspaper or other publication, or the services of a broadcasting undertaking, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the readership, circulation or other qualities of the newspaper or other publication, or to the audience, services or other qualities of the broadcasting undertaking, as the case may be, and
(b) goods or services on account of the use of the name or portrait of the other in a radio or television program relating to current or historical events or affairs, or other matters of public interest, that is sponsored or promoted by or on behalf of the makers, distributors, vendors or suppliers of the goods or services, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the goods or services, or to their manufacturers, distributors, vendors or suppliers.
Action to be determined in Supreme Court
4 Despite anything contained in another Act, an action under this Act must be heard and determined by the Supreme Court.
5 An action or right of action for a violation of privacy or for the unauthorized use of the name or portrait of another for the purposes stated in this Act is extinguished by the death of the person whose privacy is alleged to have been violated or whose name or portrait is alleged to have been used without authority.
