KPA Lawyers - June 28, 2020
In this article, we’ll be discussing a little bit about how privacy law works in Ontario. Before we get started, I want to mention what this article won’t be covering. We won’t be talking about how businesses and corporations use our personal information, and we won’t be getting into doctor-patient confidentiality or the Personal Health Information Protection Act.
Instead, in this article, we’re going to be talking about invasions of privacy that typically occur in people’s everyday personal lives. For example, what happens when you share intimate photos of yourself with someone else, and then they publish those photos online without your consent? What happens if someone says something about you that isn’t true on Twitter or Facebook?
It might make you wonder, what legal consequences are there when one person causes harm to another person by misrepresenting them, or by violating their privacy rights?
To understand the answer to these questions, we first need to mention a quick legal term that lawyers call torts. A tort is a wrongful action or an infringement of someone else’s rights that leads to civil legal liability, or in other words, it’s a reason to sue someone in civil court.
If you sue someone in civil court, you are usually called a plaintiff. In some cases, you might be called an applicant. The person being sued in civil court is called a defendant. In some cases, this person might be called a respondent.
In this article, we’ll be talking about 4 privacy torts that are recognized under Ontario law. These are four reasons that a plaintiff can successfully sue a defendant.
We’ll list each of the torts, and then go into some detail about each one:
· The first privacy tort is an “intrusion upon the plaintiff’s seclusion or solitude, or into their private affairs.”
· The second privacy tort is the “public disclosure of embarrassing private facts about the plaintiff”
· The third privacy tort is creating “publicity which places the plaintiff in a false light in the public eye.”
· And the fourth privacy tort is the “appropriation of the plaintiff’s name or likeness, for the defendant’s advantage”
Just because you sue someone for allegedly committing one of these torts against you doesn’t necessarily mean that you will win your case. In order to prove that someone committed a particular tort against you, the court will require you to prove what lawyers call the “elements of the tort”. Think of elements as ingredients in your recipe. If you don’t have all your ingredients, you won’t be able to prove your case. Since proving each element is so important, we’re going to spend some time describing the elements or each of the four torts that we mentioned.
In order to successfully sue a defendant for an intrusion upon the plaintiff’s seclusion or solitude, or into their private affairs, the plaintiff must establish the following three elements:
1. One, the defendant’s conduct was intentional or reckless
2. Two, the defendant invaded the plaintiff’s private affairs or concerns, without a lawful justification; and
3. Three, a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish
It’s important to understand that this tort is for deliberate and significant invasions of personal privacy. For example, intrusions into someone’s financial or health records, sexual practices and orientation, employment, diary or private correspondence such as emails and text messages which can be described as highly offensive by a reasonable person.
For this tort, Ontario courts have stated that, where there is no proof of financial loss, you can sue for up to $20,000 for this tort, but this number could be higher if the defendant’s conduct was so bad that the court decides to order what lawyers calls aggravated or punitive damages.
Now let’s move on to the second privacy tort that we mentioned earlier, which is the public disclosure of embarrassing private facts about the plaintiff.
This privacy tort is slightly different from the first one. In this second tort, it doesn’t matter if defendant did or didn’t invade the plaintiff’s private affairs. What matters is that the defendant published something that was embarrassing about the plaintiff, even if it was true, or even if it just a picture and not necessarily a written statement, or even if the plaintiff voluntarily gave that private information to the defendant.
There are four elements to this tort:
1. One, the defendant publicized an aspect of the plaintiff’s private life;
2. Two, the plaintiff did not consent to the publication;
3. Three, the matter which was publicized (or the fact that it was even published) would be highly offensive to a reasonable person; and
4. Four, the publication was not of legitimate concern to the public.
This tort was recognized in Ontario in 2016, when the court heard a case about a man who posted intimate photos online of a woman with whom he was in a relationship, without her consent. In that case, the Judge said the following:
“In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.”
Now let’s move on to the third privacy tort that we mentioned earlier, which is creating publicity which places the plaintiff in a false light in the public eye.
This tort has two elements.
1. One, the false light in which the other was placed would be highly offensive to a reasonable person; and
2. Two, the defendant had knowledge of (or acted in reckless disregard) about the falsehood of what they publicized, and the false light in which the other person would be placed.
This particular tort is unique in that a defendant can still be held liable to the plaintiff even if the defendant did not necessarily make the plaintiff look bad. We’re going to say that again because it’s a very specific point. A defendant can still get themselves into a lot of trouble even if what they said about the plaintiff was not defamatory or slanderous.
With this third privacy tort, it is simply enough for the plaintiff to prove that they have been publicly misrepresented in a way that a reasonable person would find to be highly offensive. The wrong committed by the defendant is in publicly representing someone else not necessarily as worse than they are, but as something other than what they are. The importance in this law is to protect a person’s right to control the way that they present themselves to the world, and not be portrayed in a false light, even if that false light isn’t necessarily embarrassing.
Now let’s move on to the fourth privacy tort that we mentioned earlier, which is appropriation of the plaintiff’s name or likeness, for the defendant’s advantage.
Although many of the other torts described in this article have only been recognized in Ontario in recent times, this fourth privacy tort has been recognized as early as 1971, when the plaintiff, Robert ‘Bobby’ Krouse, a professional football player, who at the time was playing for the Hamilton Tiger-Cats Football Club, launched a lawsuit against Chrysler Canada Ltd, which had used his photograph in an ad campaign without his consent. The Court decided that Bobby was entitled to be compensated by Chrysler for the wrongful appropriation of his image; however, Chrysler appealed the decision. Eventually, the Ontario Court of Appeal decided the case in favour of Chrysler. However, the Court of Appeal nonetheless recognized the existence of a tort that protected how an individual controls his or her name or likeness, even if it didn’t necessarily apply to the specific case of Bobby Krouse.
If we put this tort into a more modern hypothetical example, if you have a social media following, and you earn a living as an influencer by using your personal brand to promote other companies’ products, and you discover that a company has used your image or your name for their own benefit without your consent, then you might be able to sue that company for the money that you should have been paid for permission to use your name or your image.
That’s just one hypothetical example, but you as you can imagine, this type of privacy tort might apply to a variety of situations.
So now you know a little bit about the basics of how privacy law works in Ontario’s civil courts. It’s important to remember that this article is not intended as legal advice, and you should always speak with a qualified lawyer if you have questions about privacy law in Ontario.