The New Canadian Tort of Invasion of Privacy DAVID DEBENHAM BA, LL.B, LL.M (Ottawa), LLM (York), MBA, D.I.F.A, CMA, C.F.I, C.F.E,C.F.S.
Adds to the list of investigator torts Trespass to the person/false imprisonment Trespass to chattels Trespass to land Conversion The tort of unlawful interference with economic relations Defamation 2
4 types of wrongdoing Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs Public disclosure of embarrassing private facts about the plaintiff Publicity which places the plaintiff in a false light in the public eye Appropriation, for the defendant's advantage, of the plaintiff's name or likeness 3
Hypothetical Example: an investigator hired by an employer finds the employee s password, and goes onto his facebook page and appropriates a photo of the employee cavorting at a stripper bar at Aspen. The photo is then used to show that the employee is not really disabled. On cross-examination the employee explains that the photo was taken before his accident at work 4
Analysis Intrusion upon seclusion - The taking of the photo using the password The publication of the photo at a stripper bar embarrasses the plaintiff by the disclosure of private acts The use of the photo to suggest that the employee was not really injured is publicity that puts the plaintiff in a false light Appropriation for personal advantage - the use of the photo in your report, and getting paid for it 5
Intrusion on seclusion One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. 6
The modesty tort Personal privacy reflects the right an individual has to control their physical person, and as such, is given a high level of protection by the courts. Personal in this context is not a synonym for private, but refers to one s physical person. Personal privacy protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal. The right to personal privacy protects against unreasonable searches of one s body, the taking of blood or tissue samples, and other physically invasive searches. 7
The Don t invade my space tort 8
The Don t invade my space tort Territorial or spatial privacy recognizes an individual s privacy interests in a particular geographical space. For example, a person has a strong privacy interest in their home, as it is the place where our most intimate and private activities are most likely to take place. While apartment-dwellers will have a privacy interest in their apartments, a home owner s privacy interest extends to the surrounding land. Spaces other than the home that have privacy significance may also be given some protection. Such spaces might include one s car, a hotel room, a rented locker, or even spaces occupied by one s belongings such as a purse or backpack. Territorial privacy only protects a particular space as it relates to an individual. 9
The No Snooping Tort 10
The No Snooping Tort Privacy of communications traditionally addressed the right to send and receive mail, or make phone calls on land lines, without interceptions by their parties. Where cell phones do not require bugging, and emails are transmitted through the internet, the concept of privacy of communications has had to adopt. Most people trust that their emails are not being read, but when people feel that their right to keep their emails private is being violated, email privacy takes effect. Privacy laws concerning workplace email are different. A corporate employer might have company-wide rules permitting the company to read email sent or received through the company's email service. If an employer has policies that lead employees to think that email communication through the company's email service is allowable for private purposes and not for business purposes only, then the rights of the employer might be limited when it comes to monitoring emails. 11
The My Secrets are My Own tort 12
The My Secrets are My Own tort Informational privacy reflects one s privacy interests beyond our bodies and the places where we live and work. Although physically unbounded, information about oneself and the ability to control it is central to dignity and integrity. Territorial privacy protection does not necessarily extend to spaces occupied by virtue of relationships, however intimate, such as the car of a close friend or a girlfriend s apartment. Informational privacy raises the question of how much information about ourselves and our activities we are entitled to shield from the curious eyes. The nature and level of the informational privacy interest is very data and context specific. For some time, Canadian courts have focused on giving the highest level of protection to a biographical core of personal information, according little weight to other forms of personal information. This biographical core of information being information that individuals in a free and democratic society would wish to maintain and control from dissemination, being information which tends to reveal intimate details of the lifestyle and personal choices of the individual. 13
4 in 1 Modesty I own my space No snooping My information belongs to me Are these different ways of seeing the same sphere of privacy? 14
Therefore. An investigating party should understand that the tort includes not only physical intrusions but also listening or looking, into a person's private affairs, opening private or personal correspondence, intercepting communications, or examining a private bank account. The new tort specifically recognizes a person's right to informational privacy (as distinct from personal and territorial privacy) including sensitive health information, sexual orientation, employment information, diary or private correspondence, information indicating where a person lives, or any communications by cell phone, email, or text message. 15
Things to Remember Privacy involves reasonable expectations, not personal definitions (i.e., a declaration that something is confidential or private does not end the issue) Charter Values balance the public interest and the private right, and examine the method of obtaining the information (least obtrusive?) 16
Deep water for Investigators auditory or visual surveillance of a person by any means including eavesdropping, watching, spying, besetting or following and whether or not accomplished by trespass; listening to or recording of a conversation in which a person participates, or listening to or recording of messages to or from that person passing by means of telecommunications, otherwise than as a lawful party thereto; use of letters, diaries, emails, or other personal documents of a person; 17
Reasonable Expectation of Privacy the individual s presence at the time of the search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; the ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation. 18
Things to Remember Pre-texting to get access to information invites a claim for invasion of privacy Privacy is about personal space not personal property Privacy is about controlling personal information Lawful conduct requires a balancing act Third-party consent Charter Values and the convergence of the law of tort and criminal law when to get a court order 19
Your outs Informed consent of someone inside the zone of privacy Information in plain view 20
Therefore There is no reasonable expectation of privacy for actions taking place in public. Even if actions take place on private property, the circumstances may suggest that there is not a reasonable expectation of privacy. It is generally permitted to videotape a plaintiff in a public place or a place visible to the public such as a parking lot or the front yard of one s house 21
R. Cole Reasonable expectation of privacy to school computer given school policy acceded to its use for private purposes Search by school technician to find unstable files was to be expected by employee - technician within zone of privacy - employee consent After accidentally finding photos of child as part of search for unstable files - photos in plain view Continued search thereafter for offensive photos required a search warrant 22
Quantum of Damages The nature, incidence, and occasion of the defendant s wrongful act; The effect of the wrong on the plaintiff s health, welfare, social, business, or financial position; Any relationship, whether domestic or otherwise, between the parties; Any distress, annoyance, or embarrassment suffered by the plaintiff arising from the wrong; and The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant. 23
DAVID DEBENHAM david.debenham@mcmillan.ca 24