Factum

PRIVACY TORTS IN COMMON LAW PROVINCES

Copyright Daniel Burnett, 1998
Owen, Bird
Vancouver, B.C.

604-691-7506

dburnett@owenbird.com

After years as a novelty, privacy torts are on the verge of becoming an substantial area of litigation. Courts have paid homage to privacy rights on several occasion over the past decade, culminating in the Aubrey decision. The dinner bell has been rung for would-be claimants and their counsel. Media lawyers are advised to stay abreast of these issues.

STATUTORY TORTS

Four provinces, B.C., Manitoba, Saskatchewan and Newfoundland have statutory torts for breach of privacy. The basic definition of the tort is identical in B.C., Saskatchewan and Newfoundland:

"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.

In Manitoba the language is similar:

"A person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person."

All four statutes refer to the importance of the nature, incidence and occasion of the act which is alleged to be a violation and all of them make direct reference to reasonableness. All four provinces also acknowledge express defences for consent, public interest and legal authority.

From a defence standpoint, the statutes create a number of answers to a privacy claim, not all of which were available to the defendants in Aubrey. They are:

1. REASONABLENESS: Of the relatively few privacy cases on the books, most successful defences have included a finding that in all the circumstances, the defendant did not behave unreasonably.

In Davis v MacArthur (1970) 17 D.L.R. (3d) 760 (B.C.C.A), a detective was hired by a woman to spy on her husband and obtain evidence of adultery. Amongst other things, he hid a locating beacon on the plaintiffs car bumper. The B.C. Court of Appeal held that the detective had not gone beyond reasonable bounds.

In Belzberg v. BCTV Broadcasting System Ltd. (unreported, B.C.S.C. Vancouver No. C803082, 1981) reporters took pictures of the plaintiff’s house and showed them on the news. The court held there was no reasonable expectation of privacy, as the information was already in the public realm.

In Silber v. BCTV, (1985) 69 B.C.L.R. 34 (S.C.) a trespassing cameraman filmed an altercation with the plaintiff on his parking lot, which appeared on the evening news. The Court held the plaintiff had no reasonable expectation of privacy.

In Milton v. Savinoff [1993] B.C.J. No. 2396 (S.C.) a woman accidentally left vacation photographs in a male friend’s jacket. They included some topless photographs which the male "friend" showed to others. The action was dismissed and the judge said:

"The right [to privacy] must however be found to be reasonable in the circumstances in order to be actionable and all of the circumstances surrounding the alleged tortious conduct must be examined in determining whether the right to privacy has been violated"

2. CLAIM OF RIGHT: The statutes all require proof the violation was "without claim of right". The BC Court of Appeal has recently confirmed that the phrase "claim of right" is similar to the criminal concept of "colour of right" and means :"...an honest belief in a state of facts which, if it existed, would be a legal justification or excuse": Hollinsworth v. BCTV (attached - Oct. 6, 1998, BCCA No. V02968).

3. WILLFUL: The statutes, with the exception of Manitoba, also require that the violation be willful. This was defined in a Saskatchewan decision, Peters-Brown v. Regina [1996] 1 W.W.R. 337 (Sask. QB) at 345:

"[quoting Black’s Law Dictionary] ...the word [willfully] often denotes an act which is intentional or knowing, or voluntary, as distinguished from accidental. [emphasis in Reasons]

Internal distribution of the plaintiff’s private information was willful in the sense that it was done intentionally by the hospital. However, there was never an intention to violate the plaintiff’s privacy."

The Hollinsworth decision contains a similar analysis of the intent required for a a successful privacy action, saying at p. 9:

In my opinion the word "wilfully" does not apply broadly to any intentional act that has the effect of violating privacy but more narrowly to an intention to do an act which the person doing the act knew or ought to have known would violate the privacy of another person.

4. CONSENT: Three of the statutes provide a defence where where the conduct complained of "...is consented to by someone entitled to consent.", which begs the question of who is entitled to consent. The question arises when a reporters records telephone conversation without disclosing it. Whether one party to a conversation can consent to the recording, as they can in criminal law, is an unanswered in privacy tort jurisprudence. In Manitoba, the the statute requires consent of the "person", which presumably means the plaintiff, although it provides an express news gathering defence.

5. PUBLIC INTEREST: All of the statutes provide a defence of public interest. This defence has been successful even in cases not involving earth shattering revelations. It was successful in defending a case where a photo of a particularly expensive house was shown (Belzberg, supra), and where an altercation in a parking lot was filmed, and where a man was shown getting hair replacement surgery (Hollinsworth trial decision - not disturbed on appeal).

6. LEGAL AUTHORITY: There are few situations where reporters could claim to have legal authority in the traditional sense. However, the question of whether the media rights under the Charter create a legal authority remains open. Certainly newsgathering is an inherent component of s. 2(b) of the Charter, and accordingly the argument has potential:

"Like Cory, J. I take it as a given that freedom of the press and other media is vital to a free society. There can be no doubt of course, that it comprises the right to disseminate news, information and beliefs...However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information...": Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421 per La Forest, J. at p. 429-430

NON STATUTORY PROVINCES

A plaintiff in Ontario or any other common law provinces where there is no statutory tort would have to advance the action based on the developed tort of breach of confidence, the developing tort of breach of privacy, or both.

A. Breach of Confidence

Although one generally thinks of a breach of confidence action such as LAC Minerals (1989) 61 D.L.R. 14 (SCC) as applying to commercial secrets, the tort has been used in cases of more personal matters.

In England, where there is no statutory tort, breach of confidence was held to be applicable where one friend revealed information regarding the other friend’s sexual history: Stevens v. Avery [1988] 2 All E.R. 277 (QB). In the Saskachewan case of Peters-Brown, supra, a claim under the privacy legislation in that province was successful, and the court also indicated that it was a valid breach of confidence and breach of contract action. In that case a hospital patient was on an internal list of patients with infectious blood diseases long after she no longer carried the disease.

In Hollinsworth, the plaintiff pressed the action on both the statutory tort in B.C. and on breach of confidence. The B.C. Court of Appeal accepted the following summary of the requirements for such a tort (p. 7):

...To succeed in establishing a breach of confidence a plaintiff must satisfy three requirements.

(a) the information must have the necessary quality of confidence about it;
(b) the information must have been imparted in circumstances in which an obligation of confidence arises;
(c) there must be a misuse of that information to the detriment of the provider.

From a defence standpoint, these three elements form the three potential answers to a breach of confidence claim. Test (a) is self explanatory. Test (c) requires at least some proof of detriment, which is often missing in privacy cases. Test (b) means the following:

It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realized that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. (emphasis added) (Coco’s case, per Megarry, J., adopted in Cadbury, supra)

B. Breach of Privacy

The motivation for a plaintiff to pursue the developing tort of breach of privacy rather than breach of confidence is to avoid the rather strict tests above, particularly the requirement to prove detriment.

Breach of privacy actions have been acknowledged on several occasions but not defined by common law courts:

In Ontario, Judge Jacob in the Ontario County Court in Saccone v. Orr (1981), 34 O.R. (2d) 317 (Ont.C.Ct.), accepted the proposition that courts award damages for invasion of privacy regardless of whether such a tort is recognized at common law. In response to a motion to dismiss an action on the grounds that there was no cause of action known as "invasion of privacy". Judge Jacob states on pp. 321-322:

Certainly, for want of a better description as to what happened, this is an invasion of privacy and, despite the very able argument of defendant's counsel that no such action exists, I have come to the conclusion that the plaintiff must be given some right of recovery for what the defendant has in this case done.

Mr. Justice Mandel of the Ontario Court (General Division) recognized a separate cause of action for invasion of privacy in Roth v. Roth (1991), 4 O.R. (3d) 740 (Ont.Ct.-Gen.Div.).

The authorities such as those above were discussed and accepted in Dyne Holdings Ltd. v. Royal Insurance Co. of Canada [1996] P.E.I.J. No. 28 (S.C. -- A.D.) conclusion at para. 63.

When the time comes to define the common law tort, the courts are likely to look to several sources for inspiration. One source will be the four statutes above, whose principles tend to embody sensible considerations. Another source will be American jurisprudence where the tort is far more developed. The American authorities were discussed in Silber, supra, where Lysyk, J. noted that the American cases tend to focus on whether the plaintiff had a reasonable expectation of privacy in the circumstances. A third source, and the wildcard, is the Aubrey decision. Although it was based on the Quebec Civil Code, some of the language regarding the importance of personal privacy may be regarded as having general application.

In view of the Aubrey decision, one wonders whether it would be more prudent to press for privacy tort legislation in all common law provinces, mirroring the existing provincial statutes rather than leaving open the possibility of Aubrey becoming the law in the common law provinces without such legislation.

DAMAGES

Thus far, damages for breach of privacy have been modest. For example:

In ICBC v. Somosh (1983) 51 B.C.L.R. 344 (S.C.) the Plaintiff was awarded $1000 general damages when I.C.B.C. hired a detective who contacted the Plaintiff’s employer and inquired about the plaintiff’s personal habits and earnings.

In Hollinsworth, the hair replacement company which was found to have wrongfully given its videotape to a television station and lied about its right to do so was hit with a $15,000 award.

The highest award was thus far was in Lee v. Jacobson [1992] B.C.J. No. 132 (S.C.), rev’d on liability issues, [1994] B.C.J. No. 2459 (C.A.) the defendant outrageously violated privacy by cutting and using a "peep hole" into the bedroom of a cabin he rented out. Total damages were $32,000 between the two plaintiffs, which included $25,000 in punitive damages.

Like libel, however, damages are "at large" in breach of privacy cases and a gross violation of privacy which leaves a plaintiff traumatized or publicly ridiculed could up the ante considerably.