9) Privacy

There is no consistent approach to liability for the invasion of privacy in Canada. In some provinces the common law applies. In four provinces, British Columbia, Manitoba, Saskatchewan, and Newfoundland, Privacy Acts have created a statutory tort. [Note 40: British Columbia Privacy Act, R.S.B.C. 1996, c. 373; Manitoba The Privacy Act, R.S.M. 1987, c. P125; Newfoundland Privacy Act, R.S.N. 1990, c. P-22; Saskatchewan Privacy Act, R.S.S. 1978, c. P-24.]

a) Common Law

The common law has not developed a discrete and well-defined tort of invasion of privacy. There are a number of reasons for its failure to address adequately the protection of privacy interests. First, privacy is a relatively modern idea, the protection of which was not a priority when the fundamental contours of tort liability were being developed in the common law. Second, privacy is an elusive concept that is to some extent dependent upon personal attitudes and expectations. There is a clear societal consensus about the importance of personal safety but agreement on a normative degree of privacy is much more difficult to find. Some persons live in obsessive secrecy. The lives of others are an open book. Third, the protection of privacy requires a very difficult and delicate balance to be drawn between the interest in privacy and the interest in freedom of information and freedom of expression. There is a profound tension between the personal interest in being left alone and the public interest in being informed. Many people deplore the excesses of intrusive journalism and the tactics of the paparazzi, but they generally support freedom of information legislation and they recognize the great contribution that the mass distribution of information and opinion by modern communication systems makes to the quality of their lives and their ability to make informed political, financial, and personal decisions. [Note 41: The Supreme Court recently discussed the balance between the individual's right to privacy and the public's right to information in respect of the right to privacy contained in the Quebec Charter of Rights and Freedoms: see Aubry v. Éditions Vice- Versa Inc., [1998] 1 S.C.R. 591. The defendant published an inoffensive, artistic photograph of the plaintiff sitting on the steps of a public building without the plaintiff's consent. The Court held that, while the taking of the photograph was not a breach of privacy because the plaintiff was in a public place, its publication was a breach of her privacy that was not justified by the public's right to information. The Court observed that each case depends upon the nature of the information and the situation of those concerned. It was pertinent that the plaintiff was not by choice or circumstances a public figure. She was not part of a newsworthy event. Furthermore, her image was not incidental to a photograph of a public building, event, or group of people. In those kinds of situations her privacy right would generally yield to the public's right to information, but in this case the photograph was of her alone, and she had the right to control the publicity given to that image.] Fourth, the common law has been slow to recognize and protect intangible personal losses that are commonly the consequence of a breach of privacy. Transient emotional distress has traditionally generated fears of a flood of litigation, which has dictated judicial caution. Fifth, there are often difficulties in both establishing the damage caused by the loss of privacy and determining the appropriate quantum of damages to compensate that loss. Finally, the legal response to the protection of privacy in the past few decades has tended to emphasize direct statutory regulation of commercial and governmental activities rather than the development of a common law tort of privacy. [Note 42: See, for example, Bill C-6, Personal Information & Protection and Electronic Documents Act, 2d Sess., 36th Parl., 1999 (1st reading 2 November 1999 (Senate)).] Consequently, the law of torts is not well placed to deal with the myriad of privacy issues that will present themselves in the twenty-first century.

The traditional response to the infringement of privacy has been to rely on the well-established, traditional torts to provide an indirect protection of privacy interests rather than to create an independent tort of privacy. Trespass to land, nuisance, the intentional infliction of nervous shock, and trespass to chattels are all capable, in certain circumstances, of providing some protection of privacy interests. The person who snoops through another's window may commit a trespass to land. An unauthorized search of another's purse is a trespass to chattels. Constant harassing phone calls may be actionable as a private nuisance. The disadvantage of this approach is that the protection is incomplete, unpredictable, and uncertain. This is an inevitable consequence of using torts that were designed primarily to protect non- privacy interests to perform new tasks.

In the past few decades, however, there are indications of a nascent common law tort of privacy. The first step was the recognition of a remedy for the misappropriation of a person's name or likeness for commercial purposes. It might be argued that this protects the right of publicity of public figures rather than a right to privacy. [Note 43: Misappropriation of personality is dealt with later in this chapter as a tort of intentional interference with economic interests.] Nevertheless, it evidenced the inherent power of the common law to address issues similar to that of privacy and encouraged judges to consider seriously arguments in favour of a common law tort of privacy. Courts now routinely refuse to strike out a statement of claim alleging an invasion of privacy on the ground that it discloses no known cause of action. Many of these cases, however, inhabit the fringes of conventional tort liability and the pleadings normally include additional allegations of traditional wrongdoing. There are, as yet, only a few decisions on the merits, none of which explores the form, scope, and elements of an independent common law tort of privacy at any great length. Nevertheless, liability has been imposed for the unauthorized taping and publication of a private conversation, [Note 44: Saccone v. Orr (1981), 34 O.R. (2d) 317 (Co. Ct.).] the aiming of a surveillance camera into a neighbour's yard, [Note 45: Lipiec v. Borsa (1996), 31 C.C.L.T. (2d) 294 (Ont. Gen. Div.).] harassment, [Note 46: Roth v. Roth (1991), 4 O.R. (3d) 740 (Gen. Div.)] and the disclosure of a sexual assault on an undercover police officer. [Note 47: R.(L.) v. Nyp (1995), 25 C.C.L.T. (2d) 309 (Ont. Gen. Div.).]

b) The Privacy Acts of British Columbia, Manitoba, Newfoundland, and Saskatchewan

In British Columbia, Manitoba, Newfoundland, and Saskatchewan, a statutory tort of privacy has been created. The Saskatchewan Privacy Act [Note 48: 1 Above note 40.] is representative of the legislation in the other provinces in both form and substance. The centrepiece of the Saskatchewan Act is section 2, which declares that it is a tort to violate, wilfully and without claim of right, the privacy of another. The tort is actionable without proof of damage. Privacy is not exhaustively defined but section 3 describes conduct that, in the absence of consent, is prima facie evidence of a violation of privacy. The surveillance of others, listening to or recording private conversations, using another's name or likeness for commercial purposes, and making use of personal documents such as diaries and letters are included. Section 6 states that a person is entitled to the degree of privacy that is reasonable in the circumstances. Relevant factors in that assessment include the nature and impact of the defendant's conduct, the relationship between the parties, and any apology or offer of amends made by the defendant. Some guidance on the range of protection provided by the Act can be drawn from the relatively few cases in Saskatchewan and the other provinces with comparable legislation. The unauthorized publication of the health status of an employee to persons who had no legitimate interest in that information was held to be a breach of privacy, for which the defendant escaped liability only because the disclosure was not wilful. [Note 49: Peters-Brown v. Regina District Health Board (1996), [1997] 1 W.W.R. 638 (Sask. C.A.).] Personal investigations and surveillance are permissible so long as a legitimate interest is at stake and the investigator is discreet and reasonable. [Note 50: Davis v. McArthur (1970), 17 D.L.R. (3d) 760 (B.C.C.A.).] When an investigation intrudes into areas unrelated to its legitimate purpose, privacy may be violated. [Note 51: Insurance Corp. of British Columbia v. Somosh (1983), 51 B.C.L.R. 344 (S.C.). ] Television coverage of a scuffle in the course of a labour dispute was held not to be a violation of privacy because it was a newsworthy event that took place during the day at a public location. [Note 52: Silber v. British Columbia Broadcasting System Ltd. (1985), 25 D.L.R. (4th) 345 (B.C.S.C.).] The unauthorized release for television broadcast of a videotape that identified the plaintiff undergoing tunnel-graft surgery designed to secure an artificial hairpiece was held to be an actionable invasion of privacy. [Note 53: Hollinsworth v. BCTV (1998), [1999] 6 W.W.R. 54 (B.C.C.A.). The television broadcaster was not held liable. It did not wilfully and without claim of right invade the plaintiff's privacy because it believed that the plaintiff had consented to the broadcast.] The unauthorized taping of a telephone conversation is actionable. [Note 54: Ferguson v. McBee Technographics Inc., [1988] 6 W.W.R. 716 (Man. Q.B.).] The publication of the name of a crime victim that was subject to a court-ordered publication ban was held to be a violation of privacy. [Note 55: F.(J.M.) v. Chappell (1998), 158 D.L.R. (4th) 430 (B.C.C.A.).] Harassment of a newly married couple by an ex-girlfriend of the husband was held to be actionable. [Note 56: Pateman v. Ross (1988), 68 Man. R. (2d) 181 (Q.B.).] The construction and use of a peephole for the purposes of spying into the bedroom of a rental cabin was not only held to be actionable but also to warrant an award of punitive damages. [Note 57: Lee v. Jacobson (1992), 87 D.L.R. (4th) 401 (B.C.S.C.), rev'd (1994), 120 D.L.R. (4th) 155 (B.C.C.A.).] The only aberrant decision is one in which the circulation of a topless photograph of the female plaintiff by a male acquaintance in whose possession the photograph was mistakenly left was held not to be a violation of her privacy. [Note 58: Milton v. Savinkoff (1993), 18 C.C.L.T. (2d) 288 (B.C.S.C.).]

A wide range of defences set out in section 4 of the Act seeks to balance the right to privacy with other legitimate interests. They include consent, the exercise of a lawful right of defence of person or property, legal authorization, reasonable police investigation, reasonable news gathering, and the publication of information that is either in the public interest or fair comment on a matter of public interest or would be a privileged communication within the law of defamation.

The Act authorizes a broad range of remedies. An award of damages, an injunction, an accounting for profits that have accrued as a consequence of the violation of privacy, and orders for the surrender of articles or documents that have been secured through a violation of privacy are all available.

The Privacy Acts are not a panacea but they do provide some protection of privacy and they are likely to be useful and influential in the development of the common law in those provinces without a statutory tort.