Invasion of Privacy and Charter Values:
The Common-Law Tort Awakens
John D.R. Craig*
The author argues for the recognition of a tort of
invasion of privacy in the common-law provinces of
Canada. The article provides an overview of various
methods of protecting privacy, including civil-law ap-
proaches in Quebec and Germany, American and Ger-
man constitutional approaches, and the protection in
the public sphere provided by the Canadian Charter of
Rights and Freedoms. The author advocates
the
“Charter values” approach in defining the parameters
of a Canadian common-law privacy tort.
The review contrasts the United Kingdom and
Australia, where the tort of invasion of privacy has
been forcefully denied, with the United States and
Germany, where it has been generally recognized. Af-
ter a survey of the Charter protection and its scope, and
using the case of Dyment as a guide, the author pro-
poses a three-part formulation for the privacy tort. Un-
der this test, a plaintiff may recover where there is an
identifiable private object falling within one of the
three privacy zones (territorial, personal, informa-
tional), where the defendant has acted intentionally or
recklessly in compromising the private object, and
where the invasion of the private object was unreason-
able in the circumstances.
In conclusion, the author argues that not only
should the new tort be developed by reference to
Charter values, but the Canadian courts should use
American jurisprudence and the civilian experience in
its implementation. He explains that there is both a
need and a secure foundation for a Canadian common-
law privacy tort.
L’auteur note
existant
Uauteur propose ]a reconnaissance d’un drlit
civil d’invasion de ]a vie privhe en common law cana-
dienne. L’article dresse un survol de diverses mrthodes
employees pour protrger la vie privde, soit ‘approche
de droit civil au Quebec et en Allemagne, l’approche
constitutionnelle aux ttats-Unis et en Allemagne, ainsi
que Ia protection accord6e par Ia Charte canadienne
des droits et libertds dans le domaine public. Uauteur
pr~ne l’adoption de crit~res inspirds des valeurs vrhicu-
ls par la Charte pour dhfmir un drlit d’invasion de Ia
vie privre en common law canadienne.
le contraste
entre
l’Australie et Ia Grande-Bretagne, o4 l’existence d’un
drlit d’invasion de Ia vie privre a 6t6 ni6 vigoureuse-
ment, et les ttats-Unis et l’Allemagne, oi i a 6t6 re-
connu. Apr;-s avoir trac6 un survol de la protection ac-
l’arret Dyment,
cordre par Ia Charte, et avoir analys
l’auteur propose une definition en trois parties du d6lit
d’invasion de la vie prive. En vertu de ce test, le de-
mandeur aurait droit A la raparation du prejudice subi
s’il remplit les conditions suivantes : (1) il existe une
dimension privde appartenant A l’une des trois spheres
de vie priv~e (territoriale, personnelle et information-
nelle); (2) le drfendeur a agi de manihre volontaire ou
il a fait preuve d’insouciance en mettant en pdril la di-
mension priv.e et (3) l’invasion de Ia sphere priv~e
n’6tait pas raisonnable dans les circonstances.
En conclusion, l’auteur propose que ce nouveau
ddlit civil soit d6velopp6, non seulement en tenant
compte des valeurs vdhicul.es par la Charte, mais
6galement en rdfrrence a la jurisprudence amrricaine et
A l’exp~rience civiliste dans ce domaine. Selon ‘auteur,
solide pour
il existe en effet une
l’6tablissement de ce nouveau drlit ; de plus, sa cr.a-
tion est nrcessaire en droit canadien.
fondation
“Hons. B.A. (Waterloo), LL.B. (Dalhousie), B.C.L. (Oxon). Doctoral student in law, Lincoln Col-
lege, University of Oxford. I gratefully acknowledge the contributions to this article by Brian
Bawden, Osler Hoskin and Harcourt, Barristers and Solicitors, Toronto, the research assistance of
Nico Nolte and the support of the Centre for the Advanced Study of European and Comparative Law,
University of Oxford.
McGill Law Journal 1997
Revue de droit de McGill
To be cited as: (1997) 42 McGill LJ. 355
Mode de rd6frence: (1997) 42 R.D. McGill 355
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 42
Introduction
1. Laying the Foundation for Common-Law Privacy Protection through
the Charter-Values Approach
A. Why Protect Privacy?
B.
In Search of Protection of Private Life in the Canadian Common Law
1. The Principled Approach to Developing the Common Law
2.
Invasion of Privacy As a Personal Tort in the Common Law
3. The Emerging Common-Law Right of Privacy in Ontario
C. Constitutional Human-Rights Principles and the Development of the
Common Law
1. “Charter Values” and Constitutional Protection of Private Life
2. The American Experience
3. The German Experience
II. Developing a Common-Law Privacy Tort by Reference to Charter
Privacy Jurisprudence and Charter Values
A. The Definitional Debate over Privacy
B. Defining a Canadian Common-Law Tort of Privacy
1. Adopting the Charter Definition of Privacy
2. An Unreasonable Invasion of a Private Object
a. Private Object
b.
Invasion
i. Public Intrusion
ii. Public Exposure
c. Unreasonableness
i. Avoiding Liability: Justifications and Defences
ii. Public Interest/Newsworthiness
iii.
Implied Consent
Conclusion
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J.D.R. CRAIG – INVASION OF PRIVACYAND CHARTER VALUES
357
Introduction
Canadians are concerned about their privacy. A comprehensive poll of Canadians’
views about privacy, Privacy Revealed: The Canadian Privacy Survey (1993), found
that ninety-two percent of Canadians express some concern about their privacy, and
fifty-two percent are “extremely concerned”; sixty percent believe that they enjoy less
privacy than a decade ago, and eighty-one percent view computers as a threat to their
private lives.’ In the span of a few decades, we have become an information society,
replete with computers, databases, video cameras, and advanced surveillance systems.
The amount of information available through public and private computer databases
is astounding, and grows year by year. Equally astounding is the ease with which the
privacy of citizens can be violated through the use of sophisticated new technologies.
In the information age, as privacy becomes increasingly vulnerable, citizens are justi-
fied in looking to the law, and in particular the common law, for a response. Yet in
those provinces that have not legislated a statutory tort of invasion of privacy, com-
mon-law privacy protection is still emerging, and seems inadequate to the task of
protecting citizens in the era of the camcorder and cell-phone scanner.! The opportu-
nity to develop a rich and comprehensive common-law tort of invasion of privacy is
clearly at hand. In fact, as will be argued below, the fundamental values of Canadian
society, as embodied in the Canadian Charter of Rights and Freedoms and elabo-
‘ See Ekos Research Associates, Privacy Revealed: The Canadian Privacy Survey (Ottawa: Com-
munications Canada, 1993) at i and 4, 6, 12. See also Privacy Commissioner of Canada, Annual Re-
port (Ottawa: 1994-95) at 2. Canadian public opinion has apparently changed little in the past 10
years. A 1984 Royal Bank of Canada survey found that 88% of respondents considered protecting
personal privacy “very important’, while a 1984 Gallup poll showed that 68% of respondents “did
not believe there was any real privacy in Canada” (Privacy Commissioner of Canada, “Entrenching a
Constitutional Privacy Protection for Canadians”, Submission to the Special Joint Committee on a
Renewed Canada, 1991 at 2-3).
2 The provinces that have created a statutory tort of invasion of privacy are: British Columbia
(Privacy Act, R.S.B.C. 1979, c. 336), Manitoba (The Privacy Act, R.S.M. 1987, c. P125), Newfound-
land (Privacy Act, R.S.N. 1990, c. P-22) and Saskatchewan (The Privacy Act, R.S.S. 1978, c. P-24).
Invasion of privacy was first recognized as a general delict within art. 1053 of the Civil Code of
Lower Canada [hereinafter C.C.L.C.] in Robbins v. C.B.C. (1957), [1958] Que. S.C. 152, 12 D.L.R.
(2d) 35 [hereinafter Robbins cited to D.L.R.]. This view has subsequently been codified, with privacy
being elevated to the status of a right. Section 5 of Quebec’s Charter of Human Rights and Freedoms,
R.S.Q. c. C-12 [hereinafter Quebec Charter], guarantees to everyone the “right to respect for his pri-
vate life”. Art. 3 Civil Code of Quebec [hereinafter C.C.Q.] declares: “Every person is the holder of
personality rights, such as the right to life, the right to the inviolability and integrity of his person, and
the right to the respect of his name, reputation and privacy. These rights are inalienable.” The prov-
inces with no statutory tort of invasion of privacy are: Alberta, New Brunswick, Nova Scotia, Ontario
and Prince Edward Island.
Consider the story of a New York couple who found their landlord’s camcorder behind a one-way
mirror. The camera was trained on their bed (International Herald-Tribune (14 February 1996) 3).
Scanners allow a person to listen in on cellular telephone calls and police radio transmissions.
” Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.c), 1982, c. 11
[hereinafter Charter].
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rated upon by the Supreme Court of Canada, provide the foundation on which to
build such a tort.
The aim of this article is to advocate the recognition of the tort of invasion of pri-
vacy in the common-law provinces. Recent decisions from the lower courts of On-
tario demonstrate an increasing willingness on the part of the judiciary to provide a
remedy for privacy intrusions. This places Canada somewhere between the situation
in the United States, where the tort of invasion of privacy is generally recognized, and
that prevailing in the United Kingdom and Australia, where the existence of the tort
has been forcefully and repeatedly denied. One aspect of this article concerns the rea-
sons underlying the diverse treatment of privacy in the common-law jurisdictions.
Another focus is the legal protection of privacy in civil-law jurisdictions, in particular
Quebec, but also Germany, where the interplay between constitutional and civil pri-
vacy protection is most illuminating. Privacy protection is flourishing in civil-law
systems, and much can be learned in developing a Canadian common-law position.
However, the ultimate goal is two-fold: first, to demonstrate that Canadian common
law should be developed in light of the fundamental value of privacy, as embodied in
the Charter, and second, to employ Charter privacy jurisprudence, and Charter val-
ues generally, to define the actual content and requirements of a Canadian common-
law privacy tort.
I. Laying the Foundation for Common-Law Privacy Protection
through the Charter-Values Approach
A. Why Protect Privacy?
The intensity and complexity of life, attendant upon advancing civilization,
have rendered necessary some retreat from the world, and man, under the refin-
ing influence of culture, has become more sensitive to publicity, so that solitude
and privacy have become more essential to the individual; but modem enter-
prise and invention have, through invasions upon his privacy, subjected him to
mental pain and distress, far greater than could be inflicted by mere bodily
injury.
So wrote Samuel Warren and Louis Brandeis in 1890 in their groundbreaking ar-
ticle advocating the recognition at common law of a general right of privacy. Referring
to the right more specifically as the “right to be let alone”,’ Warren and Brandeis ar-
gued that the right of privacy was central to the enjoyment of life, but was coming un-
der attack in modem society. The common law, according to these two eminent writ-
ers, should respond through the judicial recognition of a tort remedy for invasions of
privacy, since such invasions offended the human spirit.7
‘ S.D. Warren & L.D. Brandeis, “The Right to Privacy” (1890) 4 Harv. L. Rev. 193 at 196.
6Ibid. at 195.
‘ See ibid. at 197. Warren and Brandeis referred to the wrong associated with an invasion of privacy
as being “spiritual” in nature.
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Warren and Brandeis were the first common-law scholars to recognize that the
importance of privacy to the individual and society should be fostered through legal
privacy protection, and they were thus the first to advocate the judicial recognition of a
general privacy right. However, the concept of “private life”, as distinct from “public
life”, and the role of that conceptual distinction in liberal-democratic societies, have
been part of political and philosophical debate for centuries.’ This debate has tradi-
tionally sought to distinguish between the areas of life where governmental, or public,
intervention is justified, and a private area immune from such intervention. Of course,
the law remains relevant even to this private sphere of life, since there may arise a
need to shield that which is private from public encroachment. Thus, the common law
has developed a considerable body of protection against tangible intrusions by others
on the person and property. Certainly, as of 1890, notions of private life were not for-
eign to the common law. However, Warren and Brandeis sought to extend common-
law protection to intangible qualities of life – dignity, thoughts, sentiments and emo-
tions – which were at risk because of technological developments. For example, de-
velopments in printing technology, production methods, and instantaneous photogra-
phy were identified by Warren and Brandeis as threatening “to make good the predic-
tion that ‘what is whispered in the closet shall be proclaimed from the housetops’.’ 0
They thus argued that common-law remedies for intrusions upon private life should
expand beyond their traditional roots in tangible bodily and property interests, in order
to protect the more sweeping and intangible concept of “inviolate personality”, under
which the dignity and emotional well-being of the individual would be paramount.
One hundred years after Warren and Brandeis, there appears to be a consensus that
privacy is essential to life in all societies, and particularly in modem ones.” That pri-
vacy has emerged as a fundamental value of human society is evinced by the inclusion
of the right against arbitrary interference with privacy in article 12 of the Universal
Declaration of Human Rights, and article 17 of the International Covenant on Civil
and Political Rights.'” In a similar vein, the Supreme Court of Canada has declared
8The right to privacy had already been recognized in the law of France (see ibid. at 214).
‘ See M.R. Konvitz, “Privacy and the Law: A Philosophical Prelude” (1966) 31 L. & Contemp.
Probs. 272. Konvitz suggests that “[t]o mark off the limits of the public and private realms is an ac-
tivity that began with man himself and is one that will never end” (at 274); see also J. Bentham, An
Introduction to the Principles of Morals and Legislation, ed. by J.H. Bums & H.L.A. Hart (London:
Methuen, 1970) c. 17, especially at 282, 293; J.S. Mill, On Liberty, ed. by G. Williams (London:
Everyman, 1993) at 77-79.
“a Supra note 5 at 195; see also K. Gormly, “One Hundred Years of Privacy” (1992) 92 Wis. L. Rev.
1335 at 1350-52. Gormly discusses how technology transformed the press in the latter part of the
nineteenth century, thus creating the “mass media”.
” A.F. Westin, in his important study, Privacy and Freedom (New York: Atheneum, 1967), exam-
ined several modem and primitive societies, and concluded that “[n]eeds for individual and group
privacy and resulting social norms are present in virtually every society” (ibid. at 13). However, due
to modem intrusions such as electronic surveillance, “the achievement of privacy for individuals,
families and groups in modem society has become a matter of freedom rather than the product of ne-
cessity” (ibid. at 21-22).
‘2 GARes. 217A (m), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
, 19 December 1966, Can. T.S. 1976 No. 47,999 U.N.T.S. 171.
360
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that “privacy is at the heart of liberty in a modem state” and “is essential for the well-
being of the individual”.”
There is a basic similarity between each of the justifications for protecting privacy
as a fundamental value and human right: privacy is a condition or state that provides
the individual with a retreat from the conformist pressures of social norms. Privacy
protects the individual from interferences in the personal decision-making process,
which can result from ridicule, hostile reactions, and demands to conform. Privacy is
essential to the promotion of individualism, and in particular, individual autonomy and
independence. Joseph Raz has described independence, a dimension of autonomy, as
an essential ingredient of individual well-being,” and this suggests that privacy is also
such a condition. If an individual is to act independently, then she must be able to re-
treat from social distractions and social pressures. She must be able to explore all the
options available, while resisting pressures to conform merely “for the sake of’. The
private life and the independent life are so linked as to be practically synonymous.
Moreover, by insulating the individual from external intrusions and distractions,
privacy facilitates concentration and creativity.’6 It fosters the development of new
ideas, attitudes, beliefs and lifestyles. Privacy thus breeds diversity, which is essential
to any pluralistic, democratic society.” To a certain extent, then, the democratic justifi-
cation for privacy is similar to that of freedom of expression, since both the free for-
mulation of viewpoints, and their free expression, are necessary to democratic political
debate, and the right to vote.'”
Some commentators, most notably Sidney Jourard, have linked privacy to indi-
vidual mental health and well-being.’ Jourard argues that privacy is crucial not only
because it allows individuals to escape social pressures for the purpose of autonomous
decision-making, but also because it affords to everyone an environment where they
“can simply be, rather than be respectable”.” The ability to retreat from society en-
sures that individuals have outlets for self-expression and can explore alternative
ways-of-life away from conformist pressures. The mental well-being of individuals,
according to Jourard, is preserved and promoted by the protection of private life. De-
” R. v. Dyment, [1988] 2 S.C.R. 417 at 427-28, 55 D.L.R. (4th) 503, 66 C.R. (3d) 348, La Forest J.
(quoting Westin with approval) [hereinafter Dyment cited to S.C.R.].
” See J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 369-72.
6 See R. Gavison, “Privacy and the Limits of the Law” (1980) 89 Yale LJ. 421 at 448-50.
7 See A.F. Westin, “Science, Privacy, and Freedom: Issues and Proposals for the 1970’s” (1966) 66
Colum. L. Rev. 1003. Westin writes: “The reasons for protecting privacy are so obvious to citizens of
liberal democracies that they often lose sight of the specific functions that privacy performs in their
political systems” (ibid. at 1019).
“S As Gavison observes, “Part of the justification for majority rle and the right to vote is the as-
sumption that individuals should participate in political decisions by forming judgments and express-
ing preferences” (supra note 16 at 455). See also E. Paton-Simpson, “Human Interests: Privacy and
Free Speech in the Balance” (1995) 16 N.Z.U.L.R. 225 at 233-34.
” See S.M. Jourard, “Some Psychological Aspects of Privacy” (1966) 31 L. & Contemp. Probs.
307.20Ibid at 310.
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J.D.R. CRAIG – INVASION OF PRIVACYAND CHARTER VALUES
361
nial of privacy is not simply upsetting to the victim, or offensive to the victim’s dig-
nity; it can lead to pain, depression, anxiety, hopelessness and malaise.’
Additionally, Charles Fried has argued that privacy is inherent to the notions of re-
spect, love, friendship and trust, and that close human relationships are only possible if
persons enjoy and accord to each other a certain measure of privacy.’ This view holds
that close, intimate relationships are possible only after the sharing of private informa-
tion concerning attitudes, interests and details about a host of subjects. Surveillance,
monitoring and other privacy intrusions destroy the exclusivity of that sharing, and
thereby undermine intimacy, love and friendship.
Thus, social retreat is necessary if an individual is to lead an autonomous, inde-
pendent life, enjoy mental happiness, develop a variety of diverse interpersonal rela-
tionships, formulate unique ideas, opinions, beliefs and ways-of-living, and participate
in a democratic, pluralistic society. The importance of privacy to the individual and
society certainly justifies the conclusion that it is a fundamental social value, and
should be vigorously protected in law. Each intrusion upon private life is demeaning
not only to the dignity and spirit of the individual, but also to the integrity of the soci-
ety of which the individual is a part.
B. In Search of Protection of Private Life in the Canadian Common
Law
Unlike the situation in the United Kingdom and Australia, where appellate courts
have rejected the existence of a general tort of invasion of privacy at common law,’
“, See ibid. at 309. Westin has reached a similar conclusion, although in slightly different terms. He
argues that each one of us distinguishes between the person we really are, and the person we want the
world to see (Le., the private self and the public persona). When our private self is revealed to the
public, we are subjected to forced exposure, and depending on the circumstances, may be embar-
rassed, or find ourselves ridiculed, and even hated. Westin observes that “[t]he numerous instances of
suicides and nervous breakdowns resulting from such exposure” are a reminder of the critical social
need to respect privacy (supra note 11 at 33-34.)
‘ See C. Fried, “Privacy” (1968) 77 Yale L.J. 475 at 477.
23 For England, see Tapling v. Jones (1865), 11 H.L.C. 290, 11 E.R. 1344, and more recently, Re X
(1974), [1975] 1 All E.R. 697 (C.A.) at 704, Lord Denning: “We have as yet no general remedy for
infringement of privacy; the reason given being that on balance it is not in the public interest that
there should be.”
For Australia, see Victoria Park Racing and Recreation Grounds Co. v. Taylor (1937), 58 C.L.R.
479 (H.C.) at 495-96 [hereinafter
ictoria Park], Latham C.J. Strong dissents were registered in Vc-
toria Park. The following comment by Rich J. is notable: “Indeed the prospects of television make
our present decision a very important one, and I venture to think that the advance of that art may force
the courts to recognize that protection against the complete exposure of the doings of the individual
may be a right indispensable to the enjoyment of life” (ibid, at 505).
New Zealand, like Canada, stands somewhere between the American and Anglo-Australian
situations. In both Bradley v. Wingnut Films Ltd. (1992), [1993] 1 N.Z.L.R. 415 (H.C.) and Tucker v.
News Media Ownership Ltd., [1986] 2 N.Z.L.R. 716 (H.C.) [hereinafter Tucker], the New Zealand
High Court supported the introduction into the New Zealand common law of an invasion-of-privacy
tort, although the Court urged a cautious and slow development.
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Canadian appellate courts have yet to make such a conclusive determination, and in-
stead have left the door open to the development of an American-style general tort.”
Because of this gap in appellate authority, the status of the tort of invasion of privacy
remains unclear. This explains why four provinces have resorted to legislation to cre-
ate such a tort, thereby accelerating the process of its recognition.’
1. The Principled Approach to Developing the Common Law
The first Canadian decision to provide a remedy for invasion of privacy was
Robbins v. C.B.C.,2′ decided under Quebec’s Civil Code of Lower Canada
(“C.C.L.C.”). There, the plaintiff complained to the Canadian Broadcasting Corpora-
tion about the content of a television show, only to have the producers exact their re-
venge by displaying the plaintiff’s address and telephone number on the screen during
a broadcast, and inviting other viewers to contact the plaintiff to “cheer him up”. Not
surprisingly, the plaintiff was bombarded with harassing telephone calls and letters.
The plaintiff alleged a breach of article 1053 of the C.C.L.C., a general delict provi-
sion which declared that every person capable of discerning right from wrong is re-
sponsible for the damage caused by his fault to another, whether by positive act, im-
prudence, neglect or want of skill. In applying this article, Scott J. held that the “fault”
was related not to the loss or enjoyment of property by the plaintiff, but to the perse-
cution of the plaintiff, which resulted in severe emotional disturbance, humiliation,
and an invasion of his private life.” Robbins thus became the first of a series of Que-
bec cases to hold defendants liable for invasion of privacy under the C.C.L.C.’
Following the codification of Quebec’s right of privacy,” important case law has
continued to emerge. For example, in Valiquette v. The Gazette,” an action under the
privacy right guaranteed by section 5 of Quebec’s Charter of Human Rights and Free-
doms, the plaintiff school teacher was able to recover damages for invasion of privacy
2 1 In Krouse v. Chrysler Canada Ltd. (1974), 1 O.R. (2d) 225, 40 D.L.R. (3d) 15, 13 C.P.R. (2d) 28
(C.A.) [hereinafter Krouse cited to O.R.], the Ontario Court of Appeal stated that Canadian courts
have not “as yet recognized such a right” (ibid. at 234). The Supreme Court of Canada has yet to
consider whether a common-law tort of invasion of privacy exists in Canada.
2 See supra note 2. The statutory creation of a privacy tort could not have been motivated by judi-
cial disapproval of the tort at common law, since no Canadian appellate court has rejected it, in con-
trast to the Anglo-Australian courts. See generally Ontario Law Reform Commission, Report on
Protection of Privacy in Ontario (Toronto: Department of the Attorney General, 1968) (Chair: H.A.
Leal); Manitoba Law Reform Commission (Report No. 9) Report on A Review of “The Privacy Act”,
Cap. P125 and The Proposed Amendments to the Criminal Code Expressed in Bill C-6 (Winnipeg, 11
September 1972) (Chair EC. Muldoon).
26 Robbins, supra note 2.
27 See ibid. at 44.
28 See also Rebeiro v. Shawinigan Chemicals (1969) Ltd, [1973] C.S. 389; Deschamps v. Auto-
mobiles Renault Canada Ltee (24 February 1972), Montreal 500-05-018140-71 (Sup. CL); H.P.
Glenn, “Civil Responsibility- Right to Privacy in Quebec- Recent Cases” (1974) 52 Can. Bar Rev.
297.
29 See art. 3 C.C.Q.; Quebec Charter, supra note 2, s. 5.
” [1991] R.J.Q. 1075, 8 C.C.L.T. (2d) 302 (Sup. Ct.) [hereinafter Valiquette cited to C.C.L.T.].
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J.D.R. CRAIG – INVASION OF PRIVACYAND CHARTER VALUES
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after the defendant newspaper published an article that revealed he was suffering from
AIDS. The article was a bombshell to the plaintiff, contributing to the deterioration of
his health. The plaintiff was not a public figure, and in the opinion of Viau J., “On ne
peut trouver meilleur exemple d’un cas oil l’int&rt commercial a pris le pas sur
l’int~r& public et sur le droit t la vie privfe.””
The ease with which the right of privacy has been accepted in Quebec,32 through
Robbins and later cases, is indicative of the principled approach to tort or delict law
under the C.C.L.C., and now the Civil Code of Quebec (“C.C.Q.”). In civilian systems,
liability is grounded in the twin notions of fault and harm. Thus, where the defendant
has acted in a manner causing harm to the plaintiff, the plaintiff may recover dam-
ages?’ The inherent flexibility of the civil-law delict principle, which allows it to deal
easily with new forms of fault, should be contrasted with the rigidity of the common
law, where centuries of precedent have given rise to identifiable categories of fault
(i.e., “torts”), each with specific criteria that must be met before a remedy can be
awarded. Often, the tort categories are applied by courts without any consideration of
the underlying principles that originally led to their development. This phenomenon
has been the greatest impediment to the judicial recognition of a privacy tort at com-
mon law. Consider the following passage from the reasons of Dixon J. in the Austra-
lian case of Victoria Park, where he rejected the existence of the tort in Australian
common law:
There is, in my opinion, little to be gained by inquiring whether in English law
the foundation of delictual liability is unjustifiable damage or breach of a spe-
cific duty. The law of tort has fallen into great confusion, but in the main, what
acts and omissions result in responsibility and what do not are matters defined
by long-established rule of law from which judges ought not wittingly to de-
part, and no light is shed upon a given case by large generalizations about
them?’
Such a rigid and conservative view of the judicial role in interpreting and fashion-
ing the common law is untenable, at least in the Canadian context.3 That judges
“Ibi at 310.
‘2 Quebec is widely considered to be a world leader in privacy protection: see P.-A. Comeau & A.
Ouimet, “Freedom of Information and Privacy: Quebec’s Innovative Role in North America” (1995)
80 Iowa L.R. 651.
” See F.P. Walton, “The Comparative Law of the Right to Privacy: The French Law as to the Right
of Privacy” (1931) 47 L.Q. Rev. 219 at 220; D.A. Cornfield, “The Right to Privacy in Canada” (1967)
25 U.T. Fac. L. Rev. 103 at 108. Remedies for invasion of private life were first recognized in France
almost a century before Robbins, supra note 2. Today, the delict of invasion of privacy has been codi-
fied as a specific privacy right: “Each individual has the right to respect for his private life” (art. 9 C.
civ.). See J.M. Hauch, “Protecting Private Facts in France: The Warren and Brandeis Tort is Alive and
Well and Flourishing in Paris” (1994) 68 Tul. L. Rev. 1219.
Supra note 23 at 505.
‘ For a recent examination of the nature of Canada’s common law, see H.P. Glenn, “The Common
Law in Canada” (1995) 74 Can. Bar Rev. 261, especially at 283:
The common law has been open to the particularities of the society around it, open to
often distant sources, and tolerant of diversity…. Today the common law should, logi-
cally, continue to exhibit the same characteristics. To fail to do so would be to abandon
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should blindly apply tort categories, without reference to the principles underlying
such categories, seems to be inviting absurdity and injustice. More to the point, the
common law is judicially-created, and is in a constant state of evolution in response to
changing social conditions.’ Consider, for example, the relatively recent development
of the tort of private nuisance, and the emergence of the tort of intentional infliction of
mental distress. In both cases, common-law principles – protection of private prop-
erty and security of the person, respectively – were employed to provide relief where
harm that offended the principle had occurred, yet where existing tort categories af-
forded no relief.” Moreover, in two recent cases considering the common-law hearsay
rule, the Supreme Court of Canada rejected categorical rigidity in favour of principled
analysis.” These decisions confirm that the common law is a principled system, and
that its development has not halted, but can and should continue on a principled basis.
An illustration in the privacy context will reinforce this point. Although ultimately
a disappointing case, the decision of the Alberta Court of Appeal in Motherwell v.
Motherwell” is the most significant Canadian appellate decision in the area of com-
mon-law privacy protection. The appellant subjected her father, brother and sister-in-
law (collectively, the respondents) to harassing telephone calls and hostile letters. At
trial, the respondents had obtained an injunction against the harassment, and nominal
damages. For the Court of Appeal, Clement J.A. held that “the common law demon-
strates its continuing ability to serve the changing and expanding needs of our present
society.”‘ He then distinguished between the principles of the common law, which he
the common law tradition –
to respond to contemporary circumstance.
to abandon an identity – and equally importantly, to fail
See Fleming v. Atkinson (1958), [1959] S.C.R. 513 at 535, 18 D.L.R. (2d) 81, Judson J.: “It has
always been assumed that one of the virtues of die common law system is its flexibility, that it is ca-
pable of changing with the times and adapting its principles to new conditions.”
” In the case of private nuisance, a tort remedy was developed for an interference with the enjoy-
ment of property that was indirect, and therefore not actionable in trespass (see A.M. Linden, Cana-
dian Tort Law, 5th ed. (Toronto: Butterworths, 1993) at 511). In the case of intentional infliction of
mental distress, the court in Wilkinson v. Downton, [1897] 2 Q.B. 57 [hereinafter Wilkinson] recog-
nized tort liability where a defendant commits an act calculated to cause physical harm to the plaintiff,
thereby infringing the plaintiff’s “legal right to personal safety” (ibid. at 59). This principle was then
applied where the harm included nervous shock with physical ramifications.
One might also have regard to the following statement from Lord Reid in Dorset Yacht Co. v.
Home Office, [1970] A.C. 1004, [1970] 2 All E.R. 294, [1970] 1 Lloyd’s Rep. 453 [hereinafter cited
to A.C.], concerning negligence:
[T]here has been a steady trend towards regarding the law of negligence as depending
on principle so that, when a new point emerges, one should ask not whether it is cov-
ered by authority but whether recognised principles apply to it. Donaghue v. Stevenson,
[1932] A.C. 562 may be regarded as a milestone, and the well-known passage in Lord
Atkin’s speech should I think be regarded as a statement of principle (ibid. at 1026-27).
38See R. v. Khan, [1990] 2 S.C.R. 531, especially at 540, 113 N.R. 53, 79 C.R. (3d) 1; R. V. Smith,
[1992] 2 S.C.R. 915, especially at 930, 15 C.R. (4th) 133
‘9 (1976), 1 A.R. 47, 73 D.L.R. (3d) 62, [1976] 6 W.W.R. 550 (S.C.A.D.) [hereinafter Mothervell
cited to D.L.R.].
‘0 IbidL at 68.
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characterized as “a general concept of legal rights and duties in an aspect of human
activities in which some common element is to be found”,” and categories, which
concern “the application of a principle to particular circumstances, discernible in
precedents, which have been found to come within the principle.”‘ 2 Clement J.A. then
argued that simply because the circumstances of a case do not appear to fall within a
category does not bar recovery in tort; on the contrary, the novel circumstances may
lie sufficiently within the concept of a principle “that consideration of a new category
is warranted.” 3
Clement J.A. then proceeded to consider the respondents’ claim that the appel-
lant’s actions were a form of nuisance, constituting an invasion of their privacy, spe-
cifically an “invasion of privacy by abuse of the telephone system”.” In reliance on the
nuisance principle that indirect interference with the use or enjoyment of land should
be actionable, he concluded that “protracted and persistent harassment (in the home
and office) by abuse of the telephone system” fell within that principle.”5
Although Motherwell constitutes a progressive approach to the development of
the common law, it is at the same time of limited value to privacy law. This is because
the decision recognizes invasion of privacy as an aspect of private nuisance, which
protects property interests. Thus, the interests that were undermined by the appellant’s
harassing behaviour were “loss or enjoyment of property” or “loss of the amenities of
the premises”.’ True privacy interests, however, are not proprietary in nature, but are
personal, rooted in the autonomy, independence and dignity of the individual. Com-
pare the proprietary interests ostensibly grounding liability in Motherwell to the
sources of fault discussed by Scott J. in Robbins: prejudice, humiliation, persecution,
emotional disturbance, and, indeed, invasion of privacy itself.”7 Both Robbins and
Motherwell deal with similar situations – harassing telephone calls and letters – yet
the Robbins court framed the legal issues in terms of the personal interests of the
plaintiff-victim. In Motherwell, the victims succeeded because their enjoyment of
property was diminished. This is a most artificial manner of characterizing the harm
caused to the victims –
a point evinced by the Court’s extensive consideration of
whether one of the plaintiffs, who was not an owner of the property in question, could
nevertheless recover damages in private nuisance.’
2.
Invasion of Privacy As a Personal Tort in the Common Law
Many commentators have noted that existing common-law torts do afford some
protection for privacy interests, but only as incidental to the protection of other inter-
” Ibid at 69.
42 ibid.
41 Ibid. at 69-70.
“Ibid. at 74.
” Ibid. at 71, 74.
46Ibid.
41 See Robbins, supra note 2 at 38, 40, 42.
41 See Mothenvell, supra note 39 at 76-78.
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ests.4′ For example, trespass to property might provide a remedy where a defendant
has planted a microphone in the plaintiff’s residence. However, relief would likely be
nominal, and would be granted for the intrusion onto the plaintiff’s property, as op-
posed to an invasion of the plaintiff’s private life. In short, similar problems would
arise to those encountered in Motherwell. Defamation law is also mentioned as pro-
tecting privacy. However, defamation is premised on falsity, and serves to protect an
individual’s interest in reputation.” It therefore bears only a passing relationship to an
individual’s interest in preserving his private life, or more specifically, in keeping cer-
tain true aspects of his life within the private realm.
The manner in which a recent British case was resolved by the English Court of
Appeal demonstrates the inadequacy of a common-law system that does not recognize
a general tort of invasion of privacy grounded in personal interests. In Kaye v. Robert-
son,’ the plaintiff was a well-known English actor who had suffered head trauma in a
serious automobile accident. Despite the signs outside Kaye’s hospital room warning
that he should not be disturbed, reporters from an English tabloid newspaper, the Sun-
day Sport, entered and photographed him lying in his bed. Kaye sought an injunction
to prevent publication of the photographs. In the Court of Appeal, all three judges
confirmed that no tort of invasion of privacy existed in English law, but nevertheless
noted the injustice of the situation. 2 The Court found that it could order an injunction
against the publication of the photographs and related story on a theory of malicious
falsehood. Apparently, the Sunday Sport intended to publish the claim that the photo-
graphs were taken with Kaye’s permission, which was patently untrue.
In reading the decision in Kaye, one is struck by the strained, albeit creative, ap-
proach of the Court in fashioning a remedy within traditional tort law (for example,
the fact that the Court seriously considered the issue of battery by the use of flash
photography!). As Basil Markesinis has pointed out,
[Kaye] won, but only just, because judges anxious to do justice were willing
“to be persuaded” that something, somehow, should be done. In this, they were
4′ See P. Bums, “The Law of Privacy: The Canadian Experience” (1976) 54 Can. Bar Rev. 1 at 14-
24. See also Cornfield, supra note 33 at 107-108; HJ. Glasbeek, “Outraged Dignity – Do We Need a
New Tort?” (1967-68) 6 Alta. L. Rev. 77 (Glasbeek argues that the tort of intentional infliction of
mental distress might be expanded to a tort of “outraged dignity”, which would provide relief for
substantial privacy invasions (ibid. at 91-94)); W.H. Pedrick, “Publicity and Privacy: Is It Any of Our
Business?” (1970) 20 U.T.L.J 391.
‘0 See Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at 1175, 126 D.L.R. (4th) 129,
25 C.C.L.T. (2d) 89 [hereinafter Hill cited to S.C.R.].
18 F.S.R. 62 (C.A.) [hereinafter Kaye].
52 Bingham L.J., for example, stated: “This case nonetheless highlights, yet again, the failure of both
the common law of England and statute to protect in an effective way the personal privacy of individ-
ual citizens … We cannot give the plaintiff the breadth of protection which I would, for my part, wish”
(ibid. at 70). The Court then proceeded to consider whether an injunction could be granted on the
bases of libel (which was rejected because it was unclear whether a jury would conclude at trial that
the printing of the photographs was defamatory), battery by reason of the use of flash photography
(which was also rejected because it caused Kaye no damage), or passing off (the requirements of
which could not be shown since Kaye was not a trader in relation to his accident story).
51(1990),
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following other distinguished courts which had tried to put old torts on the pro-
crustean bed in order to protect privacy.53
However, one also must be mindful of the inadequacies of the remedy ordered. If the
Sunday Sport had intended to publish the photographs alongside a story telling readers
the truth, namely that their photographer had burst into Kaye’s hospital room unin-
vited and had taken photographs without permission, then no injunction could have
been granted for malicious falsehood. Presumably, even after the injunction, it was
still open to the Sunday Sport to publish only the photographs.’
The fact that Kaye could not recover for an egregious invasion of privacy under
English common law seems intolerable, particularly when citizens of countries such as
the United States and France benefit from general privacy protection. In Canada,
plaintiffs in the same position as Kaye would have a remedy in Quebec, and in those
provinces with statutory privacy torts. In other jurisdictions, however, at least until re-
cently, such plaintiffs might have found themselves with no remedy at all because Ca-
nadian tort law in the area of privacy had progressed no further than the law in Eng-
land. Recent developments, though, would indicate that Canadians should not despair.
3. The Emerging Common-Law Right of Privacy in Ontario
As noted earlier, no Canadian appellate court has closed the door to the introduc-
tion of a common-law privacy tort. In fact, as of 1996, the general tort of invasion of
privacy has emerged in the jurisprudence of the lower courts in Ontario, and has the
real potential to be recognized throughout Canada.
The Ontario cases fall into two categories. There are those where a defendant has
moved to strike a statement of claim based on the tort of invasion of privacy. Such
motions have not met with success, illustrating that the existence of the tort in Ontario
53 B.S. Markesinis, “Our Patchy Law of Privacy – Time to Do Something about It (1990) 53 Mod.
L. Rev. 802 at 804-805 [hereinafter “Patchy Law”]. Markesinis makes a similar comment in his text,
B.S. Markesinis, A Comparative Introduction to the German Law of Torts, 3d ed. (Oxford: Clarendon
Press, 1994) at 416 [hereinafter The German Law of Torts].
-” The Court of Appeal’s approach in Kaye should be contrasted with the decisions of two other
courts where, in virtually identical circumstances, a remedy was awarded on the basis of invasion of
privacy. In Paris, 13 March 1965, Philipe v. France &litions, Gaz. Pal. 1966. 1 sem. Jur. 38
[hereinafter Philippe (Paris)], aff’d Cass. civ. 2e, 12 juillet 1966, D.1967.Jur.181, reporters entered the
hospital room of the nine-year-old son of a French actor, took photographs, and planned to publish
them alongside a story about the boy’s illness. The Paris Court of appeal granted injunctive relief,
holding that the unauthorized photographs and story were “an intolerable intrusion into the private life
of the Philipe family” (ibid. at 38). Similarly, in Barber v. Tune Inc. (159 S.W. 2d 291 (Mo. 1942)),
the plaintiff was being treated in hospital for a rare eating disorder when reporters entered her room
without permission, and photographed her despite her objections. Tune magazine published the pho-
tographs and an accompanying article entitled “Starving Glutton”. The Supreme Court of Missouri
confirmed a jury award of $1500, reasoning that the right of privacy includes “the right to obtain
medical treatment at home or in a hospital for an individual personal condition (at least if it is not
contagious or dangerous to others) without personal publicity” (ibid. at 295).
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remains an open question.”5 More pertinent are those cases in which the general tort of
invasion of privacy was found to exist in Ontario common law. Three are noteworthy:
” Saccone v. Orr (1981) ‘ – The defendant had recorded conversations with the
plaintiff (without the plaintiff’s knowledge) and played the recording at a munici-
pal council meeting. Jacobs Co. Ct. J. rejected the defendant’s argument that no tort
of invasion of privacy existed in Ontario common law. He wrote:
[It’s my opinion that certainly a person must have the right to make such a
claim as a result of a taping of a private conversation without his knowledge
and, also, as against the publication of the conversation against his will or
without his consent.
Certainly, for want of a better description as to what happened, this is an inva-
sion of privacy and … 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.”
Jacobs Co. Ct. J. then awarded damages to the plaintiff in the amount of $500.
* Roth v. Roth (1991)” – The plaintiffs and defendants were neighbours, and had
enjoyed good relations until a dispute arose concerning an access road. The defen-
dants began a campaign of harassment against the plaintiffs, including verbal har-
assment, physical assault and property damage. Mandel J. considered the applica-
tion of several torts, including nuisance, trespass, assault, battery and invasion of
privacy. He concluded that the cumulative effect of the defendants’ actions was so
offensive and intolerable as to amount to an invasion of the plaintiffs’ privacy.”‘ He
emphasized that their privacy right was not rooted in their ownership of property,
but rather in their rights as individuals:
It appears to me to make no sense where in certain circumstances as a result of
an action of A both the privacy of B and C are invaded, that B would have
cause of action because he has a proprietary interest whereas C who is a guest
in his house would not.Y
Having rejected the view that privacy flowed from property rights, Mandel J. held
that the common law in Canada does provide a remedy for an invasion of privacy.
In his view, echoing on this methodological point the position of the Alberta Court
of Appeal in Motherwell, the common law should not be confined to existing cate-
See e.g. Krouse v. Chrysler Canada Ltd., [1970] 3 O.R. 135 at 136, 12 D.L.R. (3d) 463 (H.C.J.),
Parker J. (“It may be that the action is novel, but it has not been shown to me that the Court in this ju-
risdiction would not recognize a right of privacy.”); Burnett v. R. (1979), 23 O.R. (2d) 109, 94 D.L.R.
(3d) 281 (H.C.J.); Capan v. Capan (1980), 14 C.C.L.T. 191 at 197 (Ont. H.C.); RE v. Ontario (1989),
47 C.C.L.T. 231 (Ont. Dist. Ct); Gray v. Filliter (28 July 1995), (Ont. C.J. (Gen. Div.)) [unreported].
– 34 O.R. (2d) 317, 19 C.C.L.T. 37 (Co. Ct.) [hereinafter Saccone cited to O.R.].
57 1bid at 321-22.
5’4 O.R. (3d) 740, 9 C.C.L.T. (2d) 141 (C.J. (Gen. Div.)) [hereinafter Roth cited to C.C.L.T.].
” See ibid. at 160.
6Id at 159.
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gories of protection, but instead should be developed in a manner consistent with
its spirit and history.”
MacKay v. Buelow (1995)2- The plaintiff sued her ex-husband after he harassed
and intimidated her for a period of four months. His actions included continuous
telephone calls and letters, stalking, threatening the plaintiff and her daughter,
hanging a used condom inside the plaintiff’s residence, videotaping the plaintiff
through her bathroom window from a tree, and advising third parties of the exis-
tence of pornographic films of the plaintiff. She suffered considerable emotional
trauma as a result of the harassment, and by the time of the civil trial, the defendant
had already been convicted of several criminal offences arising from his actions. In
reliance on Capan v. Capan,3 Mothenvell and Roth, Binks J. found that there was
an invasion of privacy, a trespass to the person, and the intentional infliction of
mental distress. He awarded the plaintiff over $100,000 in damages.
On the basis of Saccone, Roth and MacKay, then, one might well conclude that a gen-
eral tort of invasion of privacy, rooted in personal interests such as dignity and auton-
omy, as opposed to property rights, is now emerging in the common law of Ontario.
C. Constitutional Human-Rights Principles and the Development of
the Common Law
It is submitted that the legal analysis undertaken by Mandel J. in Roth is essen-
tially correct, and that his analysis supports the recognition of the general tort of inva-
sion of privacy in the Canadian common law. In Roth, Mandel J. considered two is-
sues: first, whether a right of privacy exists in Canadian law, and second, whether a
remedy exists at common law for a breach of that right by a private actor. In terms of
the first issue, Mandel J. relied on the jurisprudence of the Supreme Court of Canada
relating to section 8 of the Charter.” Specifically, he focused on the Court’s decision
in Hunter v. Southam Inc.,’ where Dickson J. (as he then was) held that the section 8
right against unreasonable search or seizure was the constitutional embodiment of the
“right to be let alone by other people”.” Mandel J. therefore concluded that the right of
privacy existed in Canada.’ He then determined that a remedy should be afforded for
an invasion of privacy by a private party.
At first blush, Mandel J.’s conclusion that the right of privacy exists in Canadian
common law because it exists under the constitution might seem like a considerable
logical leap. After all, Charter rights are not justiciable as between private parties, and
6 See ibid at 160.
6 11 R.F.L. (4th) 403,24 C.C.L.T. (2d) 184 (Ont. Gen. Div.) [hereinafter MacKay].
‘ 3Supra note 55.
6Supra
note 4. Section 8 reads: “Everyone has the right to be secure against unreasonable search or
seizure.’
6s [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, 41 C.R. (3d) 97 [hereinafter cited to S.C.R.].
“See Roth, supra note 58 at 159.
67 See ibid.
“See ibid. at 159-60.
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the common law is not itself subject to Charter scrutiny save where some state action
on the part of the legislature or executive is involved.’ However, in light of the Su-
preme Court of Canada’s theory of “Charter values”, which requires the judiciary to
interpret and develop the common law in a manner consistent with the fundamental
values of Canadian society enshrined in the Charter, Mandel J.’s logical leap seems
inevitable.
1. “Charter Values” and Constitutional Protection of Private Life
The genesis of the “Charter values” approach was R. W.D.S. U. v. Dolphin Deliv-
ery,”‘ where the Supreme Court first faced the issue of the relationship between the
Charter and the common law. McIntyre J., for a unanimous Court, concluded that the
Charter could be asserted against the common law only where a state actor is in-
volved,7’ but he then added,
I should make it clear, however, that this is a distinct issue from the question
whether the judiciary ought to apply and develop the principles of the common
law in a manner consistent with the fundamental values enshrined in the Con-
stitution. The answer to this question must be in the affirmative. In this sense,
then, the Charter is far from irrelevant to private litigants whose disputes fall to
be disposed at common law.”
The “Charter values” approach to developing the common law was elaborated in
R. v. Salituro,”‘ a case concerning the common-law spousal-incompetency rule. Iaco-
bucci J., writing for the Court, agreed that the common law should be adapted and de-
veloped to reflect changing circumstances in society at large, and that such develop-
ment should occur in light of the societal values embodied in the Charter’ He cau-
tioned, however, that courts should be reluctant to “dramatically recast established
rules of law”, as complex matters are best left to the legislature.” Thus, fundamental
change should be avoided, although incremental change to the common law is within
the purview of the courts.
In his decision, Iacobucci J. relied heavily on the Charter, and in particular, on the
general principle of individual liberty found in section 7, and the equality principle
C.C.L.T. 184 [hereinafter Dolphin Delivery cited to S.C.R.].
69 See generally R.WD.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, 38
70 Ibid
7, See ibid at 599.
72IbidL at 603.
7′ [199113 S.C.R. 654,50 O.A.C. 125, 9 C.R. (4th) 324 [hereinafter Salituro cited to S.C.R.].
74 See ibid. at 666, 675.
“Ibid at 668. Iacobucci L further stated:
Where the principles underlying a common law rule are out of step with the values en-
shrined in the Charter, the courts should scrutinize the rule closely. If it is possible to
change the common law rule so as to make it consistent with Charter values, without
upsetting the proper balance between judicial and legislative action … then the rule
ought to be changed (at 675).
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underlying section 15.” He stated that the rule making an irreconcilably separated
spouse an incompetent witness was “inconsistent with the values enshrined in the Ca-
nadian Charter of Rights and Freedoms” and that preserving the rule “would be con-
trary to this Court’s duty to see that the common law develops in accordance with the
values of the Charter.”‘
In deciding whether or not the Canadian common law should be developed to in-
clude a general tort of invasion of privacy, it is surely relevant that the Charter includes a
personal right of privacy (section 8). In R. v. Dyment, the Supreme Court of Canada
characterized the section 8 right as follows: “Grounded in a man’s physical and moral
autonomy, privacy is essential for the well-being of the individual. For this reason alone,
it is worthy of constitutional protection, but it also has profound significance for the pub-
lic order.””‘ The Court has thus recognized a constitutional right of privacy in section 8 of
the Charter,” rooted in individual autonomy and dignity, and has identified privacy as
being at the very core of liberty in Canadian society. Privacy stands not only as a Charter
value, but also as a fundamental value of Canadian society.
In light of this pronouncement, one would think that the scales have been tipped in
favour of the recognition of a general privacy tort. The principle that the common law
should be developed in light of Charter values seems to dictate this result. Although
the tort’s status will not be resolved definitively until considered by the Supreme
Court, it is difficult to imagine that it would be rejected by the same Court that has
76 Section 7 of the Charter, supra note 4, reads: “Everyone has the right to life, liberty and security
of the person and the right not to be deprived thereof except in accordance with the principles of fun-
damental justice.” Section 15(1), ibid, reads: “Every individual is equal before and under the law and
has the right to the equal protection and equal benefit of the law without discrimination and, in par-
ticular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.”
” Salituro, supra note 73 at 671. Two recent decisions from the Court concerning freedom of ex-
pression and the common law demonstrate the continuing vitality of the Charter-values approach. In
both Dagenais v. C.B.C. ([1994] 3 S.C.R. 835 at 875-78, 120 D.L.R. (4th) 12, 34 C.R. (4th) 269
[hereinafter Dagenais cited to S.C.R.]), and Hill (supra note 50 at 1169, Cory J.), the Court made ex-
tensive reference to the principles underlying various provisions of the Charter for the purpose of de-
veloping the common law in a manner consistent with those principles. In these cases, as in Dolphin
Delivery (supra note 69) and Salituro (ibit), the Court was faced with an extant common-law rule,
and had to determine whether that rule was consistent with the values embodied in the Charter. This
is a different situation from that prevailing in the case of the common-law tort of invasion of privacy,
since the privacy debate is now focused on the issue of whether or not there should be a common-law
rule, with the actual framing of the rule being a secondary concern. Obviously, however, Charter val-
ues will be relevant to both matters.
7 Supra note 14 at 427; see also R. v. Duarte, [1990] 1 S.C.R. 30, 65 D.L.R. (4th) 240, 74 C.R. (3d)
281.
” In R. v. Beare, [1988] 2 S.C.R. 387, 55 D.L.R. (4th) 481, 66 C.R. (3d) 97 [hereinafter cited to
S.C.R.], La Forest J. suggested that the section 7 guarantee of life, liberty and security of the person
also includes a right to privacy not unlike that found in section 8 (see ibidL at 412). See also B.(R.) v.
Children’s Aid Society, [1995] 1 S.C.R. 315 at 369, 122 D.L.R. (4th) 1, La Forest J.; R. v. O’Connor,
[1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235,44 C.R. (4th) 1, 103 C.C.C. (3d) 1, L’Heureux-Dube J.
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characterized privacy as “essential” to the well-being of the individual, and as pro-
foundly significant for social order.’
The role of constitutional privacy protection in developing the common law is
particularly important when considered together with the principled approach to the
common law, as advocated in Motherwell, and in the Supreme Court’s recent hearsay
decisions. The principled approach requires courts to look beyond the rigidified cate-
gories of tort law, and to examine the underlying common-law theory from which ex-
tant categories have emerged. In this way, new categories may be developed, so long
as they are firmly rooted in principle. Even a cursory reading of the Supreme Court’s
constitutional privacy jurisprudence demonstrates that the Court views privacy as a
personal right of the individual, based on autonomy, dignity, liberty and security inter-
ests. This constitutional theory relies on the very same personal interests that underlie
the tort categories collectively known as “intentional interference with the person” or
“the personal torts”: assault, battery, false imprisonment, and mental distress.” Each of
these tort categories is premised on the notion that the individual has the right to be
free from interference by third parties, and to live in security and safety. The govern-
ing principle of the personal torts is, at its most basic, security of the person.’ This, of
course, was the point made by Warren and Brandeis when they argued by reference to
various tort categories that the common law has always permitted recovery for intru-
sions on the inviolate personality of the individual.
” In fact, the Court has already demonstrated its willingness to have recourse to constitutional pri-
vacy principles in determining the common-law rights of patients with respect to their medical files.
See Mclnerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415, 12 C.C.L.T. (2d) 225
[hereinafter cited to S.C.R.], where La Forest J. concluded that as a general principle flowing from the
fiduciary nature of the physician-patient relationship, patients are entitled to have access to all their
medical records. He justified this (ibid. at 148) by relying upon the fact that these “records consist of
information that is highly private and personal to the individual”, and linking this to the right of pri-
vacy recognized in Dyment (supra note 14 at 429).
“See generally Linden, supra note 37, c. 2.
EJ. Bloustein writes in “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”
((1964) 39 N.YU. L. Rev. 962):
An intrusion on our privacy threatens our liberty as individuals to do as we will, just as
an assault, a battery or imprisonment of our person does. And just as we may regard
these latter torts as offensive “to the reasonable sense of personal dignity,” as offences
to our concept of individualism and the liberty it entails, so too we should regard pri-
vacy as a dignitary tort….
What distinguishes the invasion of privacy as a tort from the other torts which in-
volve insults to human dignity and individuality is merely the means used to perpetrate
the wrong (ibid at 1002-1003 [footnotes omitted]).
“See supra note 5 at 205. HJ. Glasbeek has made a similar observation, in the course of arguing
for the extension of the tort of intentional infliction of mental distress to include “outraged dignity”.
Glasbeek notes that while the personal torts are superficially connected to physical harm, their es-
sence is not bodily integrity per se: a battery can occur by mere touching without damages; an assault
is an apprehension of harm, and compensation is provided for a plaintiff’s fear, false imprisonment
will be actionable even where the plaintiff was not aware of her imprisonment at the time it occurred;
and mental distress is primarily directed at psychological suffering (Glasbeek, supra note 49 at 83-
1997]
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One would expect that a common-law jurisdiction with a system of constitution-
ally-entrenched human rights, for example the United States or Canada, would be
more likely to engage in a principled development of the common law, for two rea-
sons. First, constitutional jurisprudence affords judges many opportunities to consider
and elaborate upon principles such as liberty or security of the person which lie at the
roots of both constitutional and personal-tort law. The effective result is the cross-
pollination of the common law by constitutional principles, even if the common law is
not directly subject to constitutional review. In the area of privacy, for example, it is
difficult to imagine how Canadian courts could resist applying, in the common-law
context, the principles and values asserted by the Supreme Court of Canada in the
constitutional context.” In a democratic society where the protection of private life is
considered essential to liberty, one would expect the judiciary to be no more tolerant
of intrusions on privacy by private persons than by state actors. Second, the judiciary
in a system incorporating constitutional human rights will develop considerable ex-
pertise in the application of general principles to concrete facts. Because of its consti-
tutional role, such a judiciary will likely be more interventionist, developing the law to
take into account changing social circumstances, as opposed to merely applying extant
law.’ One would therefore expect such a judiciary to be bolder in reforming the law,
yet also acutely aware of the need for principle to serve as a guide.
By recognizing that the Charter-values approach to developing the common law
is part and parcel of the principled approach, one avoids the potential criticism that the
judicial recognition of a general privacy tort would be encroaching on the legislative
87). It is thus incorrect to confine the personal torts to the field of intrusion upon the physical person.
Their underlying rationale must be broader, relating to personal interests of a spiritual nature, such as
autonomy, liberty, security and dignity. It is certainly notable that when the court in Wilkinson, supra
note 37, applied the principled approach, and thereby developed the tort of intentional infliction of
mental distress, the principle relied upon was “personal safety”. In Tucker, supra note 23, the New
Zealand High Court decided to adapt the principle underlying Wilkinson for the purpose of develop-
ing a common-law privacy tort.
” One example of this phenomenon is the use of Charter privacy values in interpreting the terms of
collective agreements. In Re Doman Forest Products Ltd (1990), 13 L.A.C. (4th) 275 (B.C.), the
employer placed the grievor under constant surveillance because of chronic absenteeism. The grievor
was later discharged, and at an arbitration to determine the validity of the discharge, the employer
sought to introduce into evidence videotapes obtained during the surveillance. In determining the
admissibility of the videotapes, the arbitrator stated:
[I]t seems to me that while s. 8 of the Charter does not apply to this dispute, as an ad-
judicator I am called upon to bear in mind those fundamental Charter values now ar-
ticulated by the Supreme Court of Canada … As already noted, the values extracted
from those decisions are clear. Electronic surveillance by the state is a breach of an in-
dividual’s right to privacy and will only be countenanced by application of the standard
of reasonableness enunciated in Hunter v. Southam Inc.
I must now relate those values to the realm of a private dispute between an employer
and an employee whose relationship is governed by the terms of a collective agreement
(ibidl at 279).
See S.M. Skala, “Is There a Legal Right to Privacy?” (1977) 10 U. Queensland Li. 127 at 143,
comparing the constitutional roles of American judges with those of the Anglo-Australian judiciary.
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field. In Salituro, Iacobucci J. warned that while the common law should be developed
in light of Charter values, the courts should be reluctant to modify dramatically the
common law, and should leave matters of complexity to the legislatures. 6 No test has
yet been proffered in terms of what is too “dramatic” or “complex” for judicial elabo-
ration within the common law. However, developing a new category of personal-tort
protection, namely invasion of privacy, on the basis of a constitutional theory that
places privacy on the same theoretical plane as the existing personal-tort categories,
resembles more an incremental adjustment to the common law than a fundamental or
dramatic shift. Perhaps the adoption of an entirely new common-law principle would
implicate the Salituro warning, but the development of a new category, premised on a
traditional common-law principle, is hardly earth-shattering. In fact, in both the United
States and Germany, civil privacy protection has been judicially-developed, and has
been influenced extensively by the principles underlying constitutional privacy pro-
tection. Consideration of the experience of these two jurisdictions demonstrates that
the Charter-values approach to developing Canadian common-law privacy protection
is sound.
2. The American Experience
Although there is no mention of constitutional privacy protection in Warren and
Brandeis’s 1890 article, it is important to keep in mind that they borrowed the concept
of “the right to be let alone” from Judge Thomas Cooley, himself a respected commen-
tator in both tort and constitutional law fields.” Twenty years before Warren and Bran-
deis had written of tort privacy, Cooley had linked the Fourth Amendment of the U.S.
Constitution to privacy, characterizing it as securing “to the citizen immunity in his
home against the prying eyes of the government”.!'”
In the first significant American decision to recognize the common-law tort of in-
vasion of privacy, Pavesich v. New England Life Insurance Co.,” constitutional prin-
ciples were front and centre. Pavesich is a sweeping decision, in which Cobb J., for
the Georgia Supreme Court, linked privacy to the principles of personal security and
liberty which form the basis of both the Bill of Rights and the common law. He then
identified the right to privacy as flowing both from natural law, and from the constitu-
tional guarantee in the Fourteenth Amendment that no person shall be deprived of lib-
erty except by due process of law.’ He further observed that the Fourth Amendment
right against unreasonable search and seizure is a constitutional expression of the
See supra note 73 at 668.
87 See T.M. Cooley, Law of Torts, 2d ed. (Chicago: Callaghan, 1888); T.M. Cooley, Treatise on the
Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Un-
ion (Boston: Little Brown, 1868) [hereinafter Treatise]. Judge Cooley is discussed in Gormly, supra
note 10 at 1359-60.
” Treatise, ibid at 299.
“50 S.E. 68 (Ga. 1905) [hereinafter Pavesich]. The case concerned the unauthorized use by the de-
fendant of the plaintiff’s likeness in a newspaper advertisement. Pavesich is cited with approval in
virtually every state-court decision recognizing the common-law privacy tort.
9′ See ibiaL at 70-71. See U.S. Const. amend. XIV.
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“ancient right” to privacy over the home, and concluded that “[tihe liberty of privacy
exists, has been recognized by the law, and is entitled to continual recognition.”9′ What
is clear from Cobb J.’s decision in Pavesich is that he viewed the right of privacy as an
aspect of the liberty guaranteed by the Fourth and Fourteenth Amendments. He took
the view that the common-law tort is itself premised on the very same liberty princi-
ple, and should therefore be able to accommodate a right of privacy.’
The interplay between the common law of privacy, and constitutional privacy
protection, has continued in American jurisprudence throughout this century. Most
notably, in Olmstead v. United States,’ Brandeis J.’s dissenting view of the Fourth
Amendment as a personal-privacy right linked to human dignity repeated his earlier
theory of the common-law privacy tort, yet stood in sharp relief to the Supreme Court
majority’s position that an infringement of the Fourth Amendment could only occur
through an actual trespass by state officials onto the defendant’s private property.
Since the case concerned the wiretapping of telephone conversations away from the
defendant’s premises, the majority’s view meant that the Fourth Amendment was not
even implicated. Forty years later, however, this narrow, property-centred view of the
Fourth Amendment was repudiated by the United States Supreme Court, in favour of
the broader position advocated by Brandeis J.’ The result, then, is that American pri-
vacy protection in both the common-law and constitutional contexts is now premised
on the very same interests of human dignity and liberty.’
3. The German Experience
Unlike the American experience, which has been characterized by a more subtle
interplay between constitutional and common-law privacy principles, the German ex-
perience has seen an almost direct transplantation of constitutional privacy rights into
the civil context.
9, Pavesich, ibid at 71-72.
‘ Another example of the use of constitutional principles in developing civil privacy protection is
Melvin v. Reid, 297 P. 91 (Cal. Dist. Ct. App. 1931). There, the plaintiff claimed a violation of her
right of privacy when the defendants produced a motion picture based on her life. She had been a
prostitute, but had subsequently rehabilitated herself. The Court found that she enjoyed a right of pri-
vacy on the basis of article 1 of the Constitution of California which guaranteed to her the rights of
“life and liberty”, and the right to pursue and obtain “safety and happiness”. The Court held:
The right to pursue and obtain happiness is guaranteed to all by the fundamental law of
our state. This right by its very nature includes the right to live free from the unwar-
ranted attack of others upon one’s liberty, property, and reputation … Whether we call
this a right of privacy or give it any other name is immaterial … (ibid at 93).
‘ 277 U.S. 438 (1927).
See Katz v. United States, 389 U.S. 347 (1967) [hereinafter Katz].
9′ In Goldstein v. United States, 316 U.S. 114 (1942), Murphy J. (dissenting) actually cited the War-
ren and Brandeis article (supra note 5), and several tort cases including Pavesich, in defining the
scope of privacy protection afforded by the Fourth Amendment. His reasons were ultimately vindi-
cated in Katz ibid. See also Bloustein, supra note 82 at 995.
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Following World War II, and the atrocities of the Nazi regime, the Constitution of
Bonn,9′ including a Bill of Rights guaranteeing the right of privacy, was adopted.’ In
1958, the German Constitutional Court rendered its decision in Liith,9′ a private dis-
pute raising freedom of expression issues. The Court was therefore required to con-
front the issue of the justiciability of constitutional rights as between private actors.
Despite reaching the conclusion that the main purpose of the Bill of Rights was to
constrain public power, the Court nevertheless concluded:
[F]ar from being a value-free system the Constitution erects an objective sys-
tem of values in its section on basic rights, and thus expresses and reinforces
the validity of the basic rights. This system of values, centring on freedom of
the human being to develop in society, must apply as a constitutional axiom
throughout the whole legal system: it must direct and inform legislation, ad-
ministration, and judicial decision. It naturally influences private law as well;
no rule of private law may conflict with it, and all such rules must be construed
in accordance with its spirit.9
Thus, the German Constitutional Court adopted the principle of “Drittwirkung”, or
“indirect effect”: while constitutional rights are not directly justiciable in private dis-
putes, constitutional values inform the interpretation and application of the Civil
Code.'” The Court thought that this indirect application of the basic constitutional
Grundgesetz (23 May 1949). See “Germany”, ed. by G.H. Flanz in A.P. Blaustein & G.H. Flanz,
eds., Constitutions of the Countries of the World, vol. 7 (New York: Oceana, 1994) [hereinafter
“Germany”]. “Grundgesetz is sometimes literally translated as Basic (Constitutional) Law; and it was
so called in German since the belief was that a Constitution (Verfassung der Bundesrepublik
Deutschland) could only be drafted once Germany was reunited” (The German Law of Torts, supra
note 53 at 3n). Following reunification, the Constitution of Bonn became the constitution of the
united Germany (see “Germany”, ibid).
See “Germany”, ibid. at 106-14. In the area of privacy, several rights-granting articles are rele-
vant:
Article 1(1) The dignity of man is inviolable. To respect and protect it shall be the duty
of all public authority (ibid at 106).
Article 2(1) Everybody has the right to self-fulfilment in so far as they do not violate
the rights of others or offend against the constitutional order or morality (ibid.).
Article 10(1) Privacy of correspondence, posts and telecommunications is inviolable
(ibid. at 109).
Article 13(1) Privacy of the home is inviolable (ibid. at 111).
98 BVerfGE 7, 198 (1958), trans. by T. Weir in The German Law of Torts, supra note 53 at 352
[hereinafter Liith cited in translation to The German Law of Torts]. The case arose after Erich Llth, a
Hamburg official, called for a boycott of a new film by Veit Harlan, who had produced racist films for
the Nazis. Harlan sued under a general provision (826) of the German Blirgerliches Gesetzbuch
(Civil Code, hereinafter also BGB), which provides a remedy against a person “who wilfully causes
damage to another in a manner contra bonos mores” (trans. in The German Law of Torts, ibid. at 12).
Ltith defended by relying on his constitutional free-speech right. The case is discussed in detail in RE.
Quint, “Free Speech and Private Law in German Constitutional Theory” (1989) 48 Md. L. Rev. 247
at 252-90.
9Liith, ibid. at 355 [references already omitted in translation].
“0 Quint explains “indirect effect” as follows:
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J.D.R. CRAIG – INVASION OFPRIVACYAND CHARTER VALUES
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rights would be most relevant to certain general clauses of the Civil Code, where a de-
fendant’s actions are to be measured against standards of propriety or reasonableness:
“General clauses” … allow the courts to respond to this influence [of the value-
system of the basic constitutional rights] since in deciding what is required in a
particular case by such social commands, they must start from the value-
system adopted by the society in its constitution at that stage of its cultural and
spiritual development. The general clauses have thus been rightly described as
“points of entry” for basic rights into private law.’
While the Lilth decision was rendered in 1958, the “indirect effect” approach had
already been adopted by the Federal Supreme Court in Schacht’ for the purpose of
extending constitutional privacy protection into the civil field. There, the plaintiff at-
torney complained that his right of personality had been infringed by the defendant’s
newspaper. The plaintiff had written a letter to the newspaper on behalf of a client,
demanding a retraction for an earlier article. Instead of printing the retraction, the
newspaper printed the plaintiff’s actual letter in its “Letters from Readers” column.
the defendant’s actions as “intolerable” and
The Supreme Court characterized
“misleading”.” The plaintiff had failed in the Court of Appeal because that court took
the view that German law contained no positive statutory protection of a general per-
sonality right. The Supreme Court disagreed. The Court reasoned (foreshadowing the
Lilth decision) that because the constitution recognized the right of a human being to
have his dignity respected and the right of personality,'”‘ “the general personality right
must be regarded as a constitutionally guaranteed fundamental right”, and should
therefore be recognized within 823 I, the general delict provision of the German
Civil Code.”
supra note 53 at 376 [hereinafter Schacht cited in translation to The German Law of Torts].
In a public law action between an individual and the state, a constitutional right can di-
rectly override an otherwise applicable rule of public law. In private law disputes be-
tween individuals, in contrast, constitutional rights were said to “influence” rules of
civil law rather than actually to override them. A certain intellectual content “flows” or
“radiates” from the constitutional law into the civil law and affects the interpretation of
existing civil law rules (supra note 98 at 263 ×.).
‘0’ Lith, supra note 98 at 355 [references already omitted in translation].
‘ BGHZ 13, 334 (1954), trans. by F.H. Lawson & B.S. Markesinis in The German Law of Torts,
0’3 Ibid at 377.
,o Grundgesetz, supra note 96, art. 1(1) & 2(1).
os The decision in Schacht was confirmed in Herrenreiter (BGHZ 26, 349 (1958), trans. by F.H.
Lawson & B.S. Markesinis in The German Law of Torts, supra note 53 at 380 [hereinafter cited in
translation to The German Law of Torts]), where the plaintiff, a show jumper, complained of the unau-
thorized use by the defendant of his photograph in an advertisement for a sexual potency drug. The
Supreme Court (First Civil Division) found that the plaintiff had the right to control his image as part
of his personality right, and further held that the general constitutional right to one’s personality “also
possesses validity within the framework of the civil law and enjoys the protection of 823 1 BGB”
(ibkL at 383). See also Lebach, BVerfGE 35, 202 (1973), trans. by RH. Lawson & B.S. Markesinis in
The German Law of Torts, ibid at 390 [hereinafter Lebach cited in translation to The German Law of
Torts].
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The result, then, is that “the right to be let alone” has emerged in German civil law
in a manner analogous to its acceptance in American common law. In both cases, the
foundation of the right was identified in certain fundamental societal values that had
been given constitutional expression. In the United States, privacy was linked in
Pavesich”‘ to the constitutional guarantee of liberty and to Fourth Amendment protec-
tion against state intrusions into private realms such as the home. In Germany, privacy
was linked in Schacht” to the constitutional protection of human dignity and person-
ality. Thus, the constitutional values of liberty and dignity provided the foundation on
which civil privacy rights could be developed judicially.
The conclusion to be drawn from the American and German experiences is that
the “indirect effect” approach of developing private law in light of values embodied in
constitutional human rights, otherwise known in Canada as the Charter-values ap-
proach, is a feasible and even compelling means by which to introduce the general tort
of invasion of privacy into the Canadian common law. This, as noted above, is essen-
tially the analysis of Mandel J. in Roth.”‘ It is an analysis that fits squarely within the
traditional role of the judiciary to develop the common law on a principled basis.
II. Developing a Common-Law Privacy Tort by Reference to
Charter Privacy Jurisprudence and Charter Values
A. The Definitional Debate over Privacy
The academic literature on privacy evinces considerable controversy over the true
nature and scope of the “right to be let alone”. This is largely a function of the fact that
privacy has been pitched from its inception as a broad right protecting certain personal
interests deemed “private”. Many commentators have sought to bring greater specific-
ity to the concept of privacy, yet it seems that each privacy commentator forwards a
different definition of privacy and at least five reasons why every other definition is
inadequate.'” Consider a small sample of these competing definitions, all of which
build on Judge Cooley’s “right to be let alone”:
1. Privacy is the legally-recognized freedom or power of an individual to determine
the extent to which another individual may (a) obtain or make use of his ideas,
writings, names, likeness, or other indicia of identity, or (b) obtain or reveal in-
formation about him or those for whom he is personally responsible, or (c) intrude
physically or in more subtle ways into his life space and his chosen activities.”‘
‘O Supra note 89.
‘0 Supra note 102.
‘0 Supra note 58.
0 See Gomfly, supra note 10 at 1335; W.A. Parent, “Recent Work on the Concept of Privacy”
“0 See W.M. Beaney, “The Right to Privacy and American Law” (1966) 31 L. & Contemp. Probs.
(1983) 20 Am. Phil. Q. 341.
253 at 254.
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2. Privacy is the claim of individuals, groups or institutions to determine for them-
selves when, how and to what extent information about themselves is to be com-
municated to others.”‘
3. Privacy is a complex of three independent and irreducible elements: secrecy (the
extent to which an individual is known), anonymity (the extent to which an indi-
vidual is the subject of attention), and solitude (the extent to which others have
physical access to an individual).” 2
4. Privacy concerns personal information regarding aspects of life which reasonable
members of society would respect as being such that an individual is ordinarily
entitled to keep them to himself, whether or not they relate to his mind or body, to
his home, to his family, to other personal relationships, or to correspondence or
documents.”‘
5. Privacy is control over when and by whom the various parts of us can be sensed
by others.”‘
Such definitional diversity perhaps reflects the futility of attempting to devise a
“perfect” privacy definition. Any such effort would require some means of distin-
guishing between public and private aspects of life, yet that distinction is circumstan-
tial. Thus, any definition of privacy must have a high level of generality. Some have
viewed such generality as a stumbling block to the judicial recognition of the com-
mon-law privacy tort. For example, Leon Brittan has argued against the recognition of
the tort, because “neither in its common law nor in its statutory form does (privacy)
provide a logical or workable criterion”.”‘ The Younger Committee (1972) echoed this
view in recommending against the introduction of the tort in England:
[T]he kinds of privacy to which importance is attached and the intrusions
against which protection is sought differ so widely from one individual to an-
other and from one category to the next that it is not so far been found easy to
fit the concept tidily into a single legal framework, so as to give it reasonably
comprehensive recognition and protection through the civil and criminal law.”16
. See Westin, supra note 11 at 7. This definition was adopted in the Report of the Ontario Com-
mission on Freedom of Information and Individual Privacy, vol. 3 (Toronto: Queen’s Printer of On-
tario, 1980) (Chair- D.C. Williams); See also L. Lusky, “Invasion of Privacy: A Clarification of Con-
cepts” (1972) 72 Colum. L. Rev. 693 at 709.
“.. See Gavison, supra note 16 at 433-34.
‘. See U.K., Home Office, “Report of the Committee on Privacy and Related Matters” Cm. 1102
(1989-90) (Chair D. Calcutt) at 49 [hereinafter Calcutt Committee].
‘ See R.B. Parker, “A Definition of Privacy” (1974) 27 Rutgers L. Rev. 275 at 283-84, 290.
‘5 L. Brittan, “The Right of Privacy in England and the United States” (1963) 37 Tul. L. Rev. 235 at
267.
“6 Home Office, Lord Chancellor’s Office, Scottish Office “Report of the Committee on Privacy”
(London: Her Majesty’s Stationery Office, July 1972) (Younger Committee) (Chair: K. Younger) at 5
[hereinafter Younger Committee]; see also Parliament of the Commonwealth of Australia, “Report on
the Law of Privacy” (Parliamentary Paper No. 85) by W.L. Morison (Canberra: The Government
Printer of Australia, February 1973).
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Such a conclusion seems rather strange given that civil protection of private life has
emerged in the American common law and in the Quebec, French and German civil
law, and has found expression in numerous privacy statutes.'” Clearly, the lack of a
precise, exhaustive definition of privacy has not been a bar to its legal protection in a
variety of contexts. Indeed, the report of England’s Calcutt Committee (1990) repudi-
ated the views of the Younger Committee on the issue of defining privacy:
We accept that there is little possibility of producing a precise or exhaustive
definition of privacy or, for that matter, public interest. We have taken this into
account when examining proposals for additional remedies, whether statutory
or non-statutory. Nevertheless, many other legal concepts, such as defamation
or negligence, are workable though incapable of precise or exhaustive defini-
tion. The courts have been able to develop a detailed case law, as they have
done on privacy in other countries.”‘
Although the Calcutt Committee did not recommend the introduction of a privacy tort,
preferring other options such as media self-regulation, the Committee stressed that it
was possible to define privacy adequately, and that “[o]ur grounds for recommending
against a new tort do not, therefore, include difficulties of definition”. “‘
If privacy is to be defined for the purpose of a Canadian version of the common-
law tort, certain considerations should be kept in mind. Foremost among these is that
legal perfection is not the standard by which the adequacy of any such definition
should be assessed. In fact, a flexible and general privacy definition is preferable in
order to accommodate the diverse circumstances in which the private life of an indi-
vidual may be compromised.” Writing on the subject of constitutional vagueness,
Gonthier J. has made the point that precision in legislative drafting may be difficult in
situations where a statute is intended to deal with a complex subject matter and a wide
range of activities, not all of which are foreseeable at the time of the statute’s enact-
ment. Instead, he noted, the legislature may properly frame a statute broadly, and may
rely on the “mediating role of the judiciary”, in accordance with which the judiciary
will give substance to general provisions through interpretation.”‘ Although made in
‘” All the Canadian provincial privacy statutes provide examples of invasions of privacy, but none
attempt to define privacy. In fact, all four statutes essentially declare that the tort of invasion of pri-
vacy exists. Section 3(1) of Newfoundland’s Privacy Act (supra note 2) is typical: “It is a tort, action-
able without proof of damage, for a person, wilfully and without claim of right, to violate the privacy
of an individual.” See also Privacy Act 1993 (New Zealand), N.S. Stat. 1993, No. 28.
“, Supra note 113 at 6.
“‘ Ibid. at 48-49. See also Lord Chancellor’s Department, “Infringement of Privacy” (Consultation
Paper) (July 1993).
..0 See P.A. Freund, “Privacy: One Concept or Many” in J.R. Pennoch & J.W. Chapman, eds., Pri-
vacy (New York: Atherton Press, 1971) (NOMOS 13) 197. See also Bums, supra note 49, who ar-
gues that the best approach is to regard privacy as a principle of flexibility, and to articulate and elabo-
rate upon this principle through case law. He terms this an “open-textured” approach, and observes,
“It may not be entirely satisfactory from a theoretician’s perspective but from the viewpoint of effi-
ciency and simplicity it is arguably best” (ibid. at 11).
12 See Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at 1070-71, 125 D.L.R. (4th) 385,41
C.R. (4th) 147 (S.C.C); see also R. v. Pharmaceutical Society (Nova Scotia), [1992] 2 S.C.R. 606 at
641, 93 D.L.R. (4th) 36, 15 C.R. (4th) 1 (S.C.C.).
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relation to legislation, Gonthier J.’s point is equally relevant to the common law, where
experience demonstrates the practical benefits of flexible statements of principle (such
as the “neighbour principle” from Donaghue v. Stevenson'”) over rigidified categories
of protection.”‘ One might conclude, to borrow the statutory vagueness test adopted by
Gonthier J., that a common-law definition of privacy will be sufficient if it provides
the basis for meaningful legal debate. The “mediating role of the judiciary” can cer-
tainly be relied upon in applying a broadly-framed privacy definition.'”
Furthermore, a general common-law definition of privacy will not be applied by
Canadian common-law courts in abstracto. On the contrary, the courts may draw on a
wealth of jurisprudence from the United States, France, Germany and, perhaps most
significantly, Quebec, and make use of legal principles flowing from the four provin-
cial privacy statutes.'” Because of Canada’s dual common- and civil-law heritage, our
courts are uniquely placed to assimilate privacy law from a variety of jurisdictions. In
fact, recourse to civilian privacy jurisprudence may provide an important counterbal-
ance to the American law, particularly in cases where privacy and free speech are seen
to be in conflict.
B. Defining a Canadian Common-Law Tort of Privacy
1. Adopting the Charter Definition of Privacy
The most significant consideration in defining privacy within the common law in
Canada is that the Supreme Court has already adopted a definition of privacy for the
purpose of applying section 8 of the Charter. In Dyment, La Forest J. wrote that the
first challenge in defining privacy “is to find some means of identifying those situa-
tions where we should be most alert to privacy considerations.”. To this end, he
adopted the concept of “zones of privacy”, and identified three such zones: territorial,
personal and informational.’ Territorial privacy refers to places, such as the home,
“”McAlister (Donoghue) v. Stevenson, [1932] A.C. 562, All E.R. Rep. 1 (U.K.).
‘ See text above, accompanying notes 32-43.
I would suggest the following definition: “Privacy is a condition of control enabling the individ-
ual to prevent unreasonable access by others to private objects, and the right of privacy is the right of
the individual to assert that control”.
“‘ Although the statutory torts and the common-law tort appear to cover the same legal ground, it is
possible that the common-law tort will perform a gap-filling role in the case of Manitoba. That prov-
ince’s The Privacy Act, supra note 2, requires a “substantial” invasion of privacy before the statutory
tort is engaged (s. 2(1)) (see Bingo Enterprises v. Price Waterhouse (1986), 41 Man. R. (2d) 19, 26
D.L.R. (4th) 604 (C.A.)). Since the common-law privacy tort would not necessarily require a
“substantial” violation of privacy, it might yet play a role in Manitoba. On this point, see E.F. Geddes,
“The Private Investigator and the Right to Privacy” (1989) 27 Alta. L. Rev. 256 at 287-88.
‘ 6 Supra note 14 at 428.
.. La Forest J. adopted this formulation of privacy from Privacy and Computers (A Report of a
Task Force Established Jointly by Department of Communications/Department of Justice) (Ottawa:
Information Canada, 1972) at 12-14 [hereinafter Privacy and Computers].
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that are typically considered to be private. Personal, or “corporeal”, privacy is con-
cerned with the human body. Finally, informational privacy
“… derives from the assumption that all information about a person is in a fun-
damental way his own, for him to communicate or retain for himself as he sees
fit.” In modem society, especially, retention of information about oneself is ex-
tremely important. We may, for one reason or another, wish or be compelled to
reveal such information, but situations abound where the reasonable expecta-
tions of the individual that the information shall remain confidential to the per-
sons to whom, and restricted to the purposes for which it is divulged, must be
protected.
28
Of course, privacy in these three “zones” is not absolute. The principle of a
“reasonable expectation of privacy” is controlling. Thus, while an invasion of one of
the privacy zones will immediately raise concerns, the role of a court will be to de-
termine whether, given all the circumstances, a reasonable person would have ex-
pected to enjoy privacy, and therefore should have been able to rely on her privacy
right to repel the invasion.”
The Dyment approach to privacy is valuable because it identifies the areas in
which we should be vigilant in protecting private life, while also ensuring flexibility in
privacy law to take into account diverse circumstances. The same approach should be
adopted within Canadian common law. In fact, such an approach would be preferable
to the simple importation of the American tort of invasion of privacy. The Restatement
(Second) of Torts'” describes the tort of invasion of privacy as “a complex of four dis-
tinct wrongs” which are related to each other because “each involves an interference
with the interest of the individual in leading, to some reasonable extent, a secluded and
private life.””‘ The four “wrongs” are: (1) unreasonable intrusion upon the seclusion
of another (i.e., intrusion); (2) appropriation of the other’s name or likeness (i.e., ap-
propriation); (3) unreasonable publicity given to the other’s private life (i.e., publicity);
and (4) publicity that unreasonably places the other in a false light (i.e., false light). 2
When critically evaluated, these four wrongs are not mutually exclusive. The ap-
propriation tort should properly be considered an aspect of publicity: an element of the
plaintiff’s personality has been thrust into the public eye against his will.’ Addition-
ally, the recognition of “false light” as a distinct privacy category tends to muddy the
‘
” Supra note 14 at 429-30, citing Privacy and Computers, ibid. at 13.
2 9 See Dyment, ibid. at 428, La Forest J. citing Dickson L in Hunter v. Southam Inc., supra note 65
at 159-60. La Forest J. stated that “[c]laims to privacy must, of course, be balanced against other so-
cietal needs”, and agreed, as evidenced in his citation of Dickson J., that such balancing is central to
the concept of a reasonable expectation of privacy.
“o Restatement (Second) of Torts 652 (1977).
“. Ibi. at 652A.
IBM.; this description of the tort comes from W.L. Prosser, “Privacy” (1960) 48 Cal. L. Rev. 383.
Prosser has argued that “appropriation” is distinct from intrusion, publicity and false light be-
cause the interest protected is more proprietary than mental (see ibid. at 406). If this is the case, then
“appropriation” is not in fact a category of invasion of privacy. However, Bloustein has strongly disa-
greed with Prosser, arguing that the interest protected in the “appropriation” cases is not proprietary,
but is identical to that protected in the publicity cases: individual dignity (supra note 82 at 986).
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waters by introducing an unnecessary element of falsity into the privacy equation. It
would be preferable to treat “false light” cases either as defamation or publicity ac-
tions: defamation where the plaintiff’s reputation is impugned by a statement alleged
to be false, and publicity where the plaintiff complains that a statement, regardless of
its veracity or falsity, has drawn unwanted public attention to him and thereby exposed
his private life.” Furthermore, the “publicity” aspect of the privacy tort should be dis-
tinguished from the tort already recognized by the Ontario Court of Appeal in Krouse
v. Chrysler Canada.”‘ The Restatement can, however, provide guidance in defining the
nature and scope of a Canadian common-law privacy tort by showing the different
ways in which privacy can be invaded, thus triggering tort liability. Essentially, there
are two modes of invasion: public intrusion into a zone of privacy, and public expo-
sure of a zone of privacy. These will be elaborated upon below, in the attempt to de-
velop the requirements of a Canadian common-law privacy tort.
2. An Unreasonable Invasion of a Private Object
In light of the principles from Dyment, the following three-part formulation seems
appropriate for analyzing an invasion of privacy. A plaintiff may recover where:
1. The plaintiff has a personal interest falling within one of the zones of privacy (a
private object);
2. The defendant has, intentionally or recklessly,’36 acted in a manner which has com-
promised the private object (an invasion of a private object); and
3. In the circumstances, the invasion of the private object was unreasonable (an un-
reasonable invasion of a private object).
Each of these three requirements will be discussed in turn.
” The Younger Committee stated, “We do not support the view of those who argue that the publi-
cation of an untruth about a person should be treated by the law as an invasion of privacy rather than
under the heading of defamation … We believe that the concepts of defamation and intrusion into pri-
vacy should be kept distinct from one another” (supra note 116 at 21). See also G. Dworkin, “The
Common Law Protection of Privacy” (1967) 2 U. Tasmania L.R. 418 at 426; T.L. Yang, “Privacy: A
Comparative Study of English and American Law” (1966) 15 I.C.L.Q. 175 at 185. Some American
state courts have doubted that “false light” should be included as a distinct category of invasion of
privacy (see e.g. Hardge-Harris v. Pleban, 741 R Supp. 764 at 776 (E.D. Mo. 1990)).
“‘ Supra note 24. The tort recognized in Krouse was of a proprietary nature, linked to an individ-
ual’s exclusive right to exploit his personality commercially. However, with the recognition of a gen-
eral common-law tort of invasion of privacy, a plaintiff in the position of Krouse would have an ac-
tion for the unauthorized public exposure of his photograph, and could therefore avoid a claim based
on the commercial value of his personality.
136 Invasion of privacy is an intentional tort, like the other personal torts (i.e. assault, battery, etc.)
(see generally Linden, supra note 37, c. 2). See also Restatement, supra note 130, 652B. I leave
aside the possibility of a negligent invasion of privacy, grounded in the “neighbour principle”. Some
American states have recognized this, however (see New Summit Associates v. Nistle, 73 Md. App.
351 (Md. Ct. Spec. App. 1991)).
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a. Private Object
When La Forest J. wrote of the “zones of privacy” in Dyment, his purpose was to
identify the circumstances in which we should be particularly concerned about inva-
sions of privacy. For greater specificity, certain private “things”, or “private objects”,
fall within these zones, and can be identified. S.I. Benn has described the concept of
private objects as follows:
“Private rooms”, “private affairs”, “private correspondence” belong to the
category of objects of privacy rights. There are legal, moral or conventional
norms that constitute reasons not to try to share or participate in such objects
without the permission of the specified holder of the privacy right.’37
The following is an illustrative, though certainly not exhaustive, list of private
objects within the three privacy zones:
* The territorial zone: the home, a hotel room, a hospital room, a public-washroom
stall, a phone booth;
” The personal zone: the body, image (photographs or other representations), voice,
name;
” The informational zone: matters related to a person’s health, age, sexual orienta-
tion, a diary, medical files, employment records.
The “subject” of privacy, namely the plaintiff in an invasion-of-privacy action,
must be able to point to some “object” falling within a zone of privacy in order to suc-
ceed in her claim. To illustrate, the Valiquette case… involved the informational zone
of privacy. The private object in Valiquette was personal information about the plain-
tiff’s health and sexual orientation, matters generally recognized as private and inti-
mate. However, a case need not be limited to objects within a single zone of privacy.
In Kaye,” for example, the invasion of privacy concerned objects within all three pri-
vacy zones. First, the actor’s hospital room, being a private object of a territorial na-
ture, was invaded. Second, details about his health were obtained, and like Valiquette,
he had a claim that such details fell within his informational zone of privacy. Third,
reporters took photographs of him, thereby capturing his image, an object within the
personal zone.
Ultimately, it may be possible to identify several private objects which have been
implicated in a given case. It should be stressed, however, that the identification of a
private object is necessary, but not itself sufficient, to ground liability for an invasion
of privacy. It is simply the first step in the analysis, assisting in the determination of
the aspect of private life which has allegedly been invaded. Whether or not a privacy
invasion has occurred, and whether or not the plaintiff is entitled to rely on a reason-
13 7 Si Benn, “The Protection and Limitation of Privacy” (1978) 52 Austl. L.J 601 at 602. See also
the sophisticated zonal approach of the California Court of Appeal in Hill v. National Collegiate Ath-
letic Association, 26 Cal. Rptr. 2d 834 at 856 (1994).
13 Supra note 30.
39 Supra note 51.
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able expectation of privacy in the circumstances, are separate questions to be consid-
ered.
b.
Invasion
As noted above, the private nature of an object must be compromised intentionally
(or recklessly) to ground “an invasion” of privacy. The Restatement assists in identify-
ing the circumstances in which such an invasion, or compromise, will occur. There are
two, public intrusion and public exposure. These are also found in the Quebec juris-
prudence. In Valiquette, Viau J. observed that the right to respect of private life found
in section 5 of the Quebec’s Charter of Human Rights and Freedoms” comprehends
two sub-rights: the right of solitude and the right of anonymity.'” This is simply an-
other way of saying that an individual may assert his privacy right to repel a public in-
trusion into his private life (thereby protecting his solitude), or to block the public ex-
posure of his private life (thereby protecting his anonymity).
i. Public Intrusion
The common law has traditionally afforded some protection against invasions of
the territorial zone of privacy through actions based on property rights, like trespass
and nuisance.’ 2 However, the common law does not provide any protection against:
(1) intangible intrusions into the territorial zone (e.g., eavesdropping on a private con-
versation taking place in the plaintiff’s home through the use of an ultrasensitive mi-
crophone positioned some distance away) and (2) tangible intrusions into the territorial
zone where the plaintiff has no property right on which to base a claim in trespass
(e.g., the invasion of a hospital room, as in Kaye”‘). Thus, in either of these cases, the
tort of invasion of privacy would provide a welcome basis for relief.'”
In terms of the personal zone of privacy, the common-law tort of battery provides
relief in cases of physical intrusion upon a plaintiff’s body. However, the privacy tort
would significantly expand the scope of legal protection in the personal zone, since it
would move tort law away from a focus on physical harm, and refocus it on spiritual
interests such as dignity and autonomy. Plaintiffs who have been subjected to harass-
‘”Supra note 2.
“See supra note 30 at 312-13.
‘”See e.g. Motherwell, supra note 39.
‘4 Supra note 51.
‘”A case raising both situations is Lee v. Jacobsen ((1992), 87 D.L.R. (4th) 401 (B.C.S.C.), rev’d
99 B.C.L.R. (2d) 144 (C.A.) (new trial ordered) [hereinafter Lee]), decided under the British Colum-
bia Privacy Act, supra note 2. There, the female plaintiffs had rented a cottage from the defendant,
only to discover the existence of a peephole in an exterior wall, covered on the inside by a one-way
mirror, looking into the cottage bedroom. The Court concluded that the plaintiffs’ landlord had in-
stalled and used the peephole. On the proposed definition of the common-law tort of invasion of pri-
vacy, the plaintiffs could recover for an intangible intrusion of the cottage bedroom by the landlord, or
for a tangible intrusion upon the curtilage surrounding the cottage (since the landlord would have
been standing on the curtilage when looking through the peephole) (see Lee, ibid at 404). This would
be the case regardless of whether or not the plaintiffs could assert property rights in the cottage.
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ment, surveillance and stalking would in particular benefit. Consider, for example, the
situation of the plaintiff in MacKay,” who was harassed so intensely that she suffered
severe emotional trauma. Her claim was essentially that her personal zone of privacy
had been invaded by the defendant’s calculated attack on her personal security.
Intrusions upon the informational zone, which would become actionable under the
common-law privacy tort, are a subject not presently dealt with by the common law.
Essentially, such an intrusion occurs whenever the defendant has obtained personal in-
formation about the plaintiff without the plaintiff’s consent, with or without the in-
volvement of a third party. The information might be obtained from the plaintiff him-
self, perhaps through the unauthorized taping of his private conversations, as was the
case in Saccone.” Or, an informational intrusion will occur where the defendant has
obtained personal information about the plaintiff from a third party, and the plaintiff
did not consent to the release of the information to the defendant. A hacker who has
broken into a computer database containing medical files would be an example of
such a defendant. Another example is illustrated by the British Columbia decision of
LC..C. v. Somosh,” where the plaintiff hired a private investigator to investigate the
married defendants’ insurance claim. The investigator contacted staff at Mr. Somosh’s
office, and asked questions about his salary, drinking habits and morals. The defen-
dants counterclaimed for invasion of privacy under the British Columbia Privacy Act.
The Court considered the investigator’s inquiries to be a clear violation of Mr. So-
mosh’s statutory right of privacy, since the evidence revealed that the plaintiff never
had a cause of action against him that could justify making such inquiries. The plain-
tiff was then held responsible for the actions of the private investigator whom it had
engaged.
ii. Public Exposure
Publishing information about a person is not presently actionable at common law,
unless the information is false and defamatory. The tort of invasion of privacy would
allow recovery for the unauthorized publication of true – but private –
facts. This is
because a plaintiff’s private life would be compromised in any case where the defen-
dant has exposed an object within one of the privacy zones to unwanted public scru-
tiny. Often, public exposure will occur through the mass media, but there is no reason
to make this a pre-condition for recovery in privacy.”‘ It should be sufficient that the
“5 Supra note 62. See also Pateman v. Ross (1988), 68 Man. R. (2d) 181 (Q.B.), involving a similar
claim under Manitoba’s The Privacy Act, supra note 2; Davis v. McArthur (1970), [1971] 2 W.W.R.
142, 17 D.L.R. (3d) 760 (B.C.C.A.), where the plaintiff failed in a privacy action against a private in-
vestigator who had “tailed” him for weeks.
” Supra note 56. See also Ferguson v. McBee Technographics Inc., [1989] 2 W.W.R. 499,58 Man.
R. (2d) 119 (Man. Q.B.), decided under Manitoba’s The Privacy Act, ibid; Fultz v. Gilliam, 942 F 2d
396 (6th Cir. 1991).
‘, (1983), 51 B.C.L.R. 344 (S.C.).
’48 See e.g. Miller v. Motorola Inc., 560 N.E. 2d 900 (Ill. App. 1 Dist. 1990), where the plaintiff was
held to have a cause of action against her employer after information about the mastectomy procedure
she had undergone was disclosed to a few of her fellow employees.
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defendant has disclosed private matters about the plaintiff to another person without
the authorization of the plaintiff.”
It is difficult to envisage a situation in which the territorial zone of privacy could
be compromised through public exposure. This results from the fact that intrusions on
territorial objects are most often committed for the purpose of obtaining information
about a person, as opposed to a place; if that information is subsequently disseminated
to others, then it seems most natural to connect the latter invasion of privacy to the in-
formational zone. However, it is conceivable that the publication of photographs of the
interior design of an individual’s house could constitute public exposure of a territorial
object, thereby supporting a privacy claim.’ Nevertheless, public exposure generally
concerns a compromise of private objects in the personal and informational zones.
Public exposure amounting to an invasion of privacy will thus commonly arise in
two situations. First, concerning the informational zone, are those cases where the de-
fendant has published true, but intensely personal, private facts about the plaintiff, thus
publicly exposing the plaintiff. In Valiquette,”‘ for example, the publication of facts
that identified the plaintiff as a homosexual and as an AIDS victim was actionable as
an infringement of his right to anonymity.
A second situation in which a public exposure may amount to an invasion of pri-
vacy concerns the personal zone of privacy. Where a defendant has pirated the image,
voice, name, or other distinguishing personal characteristic of the plaintiff, and has ex-
posed that personal characteristic to the public, then an object in the plaintiff’s per-
sonal zone of privacy will have been compromised. The American case of Pavesich”..
SDefining public exposure in this way is important in the case of computer database operators. If
an operator is in possession of personal information about an individual, then any unauthorized dis-
closure of that information to a third party should attract liability as an invasion of privacy. In most
cases, an intrusion into one of the privacy zones will necessarily precede and exacerbate the public
exposure of the information or images obtained through the intrusion. In any case where an individual
is videotaped, or his conversations are recorded, for example, there will have been an intrusion into
his private life by the fact of recording, which might justify both an injunction against the public ex-
posure of the tape, and/or a court order that the tape be destroyed. A tort claim prior to publication
will be rare, however, since the person who has been recorded will likely be unaware that this has oc-
curred until the record is made public. An American case illustrates this point: Boyles v. Kerr 806
S.W. 2d 255 (C.A. Texas 1991) [hereinafter Boyles]; see also Saccone, supra note 56. In Boyles, the
defendant, with the aid of some friends, videotaped himself and the plaintiff engaging in sexual inter-
course. The defendant showed the tape to ten people, iesulting in considerable embarrassment to the
plaintiff, who only learned of the existence of the tape after hearing rumours. She sued, and the jury
awarded her $1,000,000. The Court of Appeal affirmed the jury award, observing that on these facts,
the defendant’s actions amounted to both an intrusion upon the plaintiff’s personal affairs, and a pub-
lic disclosure of embarrassing private matters (see Boyles, ibid. at 258, 261).
‘m In Robbins, supra note 2, the C.B.C. broadcast the plaintiff’s address, inviting the public to write
to him. A person’s address could, arguably, fall within the territorial zone of privacy, and therefore,
the broadcasting of an address could constitute the public exposure of a territorial object. However, it
seems more reasonable to classify an address as an object within the informational zone. This dem-
onstrates that the zones of privacy are not watertight compartments, and that they may well overlap.
,s, Supra note 30.
‘5 Supra note 89.
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is an example. There, the plaintiff’s photograph was used without his consent in an in-
surance advertisement. The Court held that
[t]he knowledge that one’s features and form are being used for such a purpose,
and displayed in such places as such advertisements are often liable to be
found, brings not only the person of an extremely sensitive nature, but even the
individual of ordinary sensibility, to a realization that his liberty has been taken
away from him; and as long as the advertiser uses him for these purposes, he
cannot be otherwise than conscious of the fact that he is for the time being un-
der the control of another, that he is no longer free, and that he is in reality a
slave, without hope of freedom, held to service by a merciless master.’
Present-day situations in which ordinary citizens find that their personal character-
istics have been publicly exposed are rare.'” More common are cases where celebrities
and public figures are exposed. This is simply because their identifiable personal char-
acteristics are valuable to advertisers, and are therefore more likely to be appropriated
for marketing purposes. In the German case of H & W Journal,’ a well-known scien-
tist discovered that his name had been used to endorse a ginseng formula advertised as
an aphrodisiac. He successfully claimed for unlawful invasion of his personality right.
Similarly, in Cher v. Forum International, Ltd., 6 the actress-singer successfully sued
the defendant for publishing an advertisement which implied that she was endorsing
the defendant’s magazine (“So join Cher and FORUM’s hundreds of thousands of
other adventurous readers today”).
Even though public exposure of personal characteristics is more likely to involve
persons whose images and names are publicly recognizable and therefore have mar-
keting value, that does not mean that the interest being infringed is proprietary. Both
Pavesich, an ordinary citizen, and Cher had an interest in controlling the public expo-
sure to which they were subjected. By losing this control, their dignity and autonomy
were undermined, and their personal zone of privacy was compromised.
c. Unreasonableness
The resolution of a privacy claim often depends on identifying and weighing the
competing interests of plaintiff and defendant. For this reason, the principle of
“reasonableness” is the linchpin of legal protection of privacy. In many if not most
cases, it will be obvious when a private object has been compromised; thus, the real is-
sue facing the court is whether, in the circumstances of the case, a reasonable person in
the position of the plaintiff would have expected to repel an intrusion upon, or block
.. Ibid. at 80.
” For one example, see Schifano v. Greene County Greyhound Park, 624 So. 2d 178 (Ala. 1993),
where photographs which had been taken of the plaintiffs while they were seated in a greyhound
racetrack grandstand were subsequently featured in an advertising brochure. The plaintiffs’ action in
privacy was dismissed on the theory that by sitting in a public grandstand, they had no expectation of
privacy on which to base their claim.
“‘ BGHZ 35, 363 (1961), trans. by EH. Lawson & B.S. Markesinis in The German Law of Torts,
supra note 53 at 386.
*6692 R 2d 634 (9th Cir. 1982) [hereinafter Cher].
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the exposure of, his private life. At this stage, it becomes necessary to focus the
“reasonableness” analysis on the nature of the invasion, and to determine the interests
and circumstances supporting both the plaintiff’s and the defendant’s positions. This
entails a classic balancing between the plaintiff’s right to control access to his private
life, and the interests of the defendant in justifying his own access; the result deter-
mines what is reasonable in the circumstances.
The adoption of judicial balancing has been criticized because it creates uncer-
tainty in the application of the law.’ However, several points can be made in reply.
First, since the Canadian system of human-rights protection is premised on the judicial
balancing of competing interests (consider, for example, section 1 of the Charte?5 ), it
would be most peculiar to reject a balancing approach for resolving privacy claims be-
cause of uncertainty. Second, judicial balancing is central to the privacy jurisprudence
in civilian systems like Germany,’ 9 demonstrating that such an approach is legally vi-
able. Third, in many cases, the result of the balancing will be obvious. For example,
the unauthorized publication of health or medical records is so clearly an unreasonable
public exposure of a private object that little analysis is required to find that the re-
quirements of the privacy tort have been satisfied.”‘ It is inappropriate to deny relief in
egregious cases because certain borderline claims could pose difficulties in the balanc-
ing process.
i. Avoiding Liability: Justifications and Defences
Many commentators have written of certain defences or justifications that can be
raised by a defendant to avoid liability for invasion of privacy. Prosser, for example,
dedicated a considerable portion of his seminal 1960 article on the privacy tort to the
defences of public interest and consent.” The Restatement refers, among other de-
fences, to the “public concern” exception to the “publicity” aspect of the privacy tort.”
The provincial privacy statutes also provide a list of defences. For example, the de-
fences enumerated in Saskatchewan’s The Privacy Act ‘ include: express or implied
consent (para. 4(1)(a)), lawful right of defence of person or property (para. 4(1)(b)),
legal authorization (para. 4(1)(c)), and fair comment on a matter of public interest
(para. 4(2)(a)).
Sources such as the Restatement and the provincial privacy statutes will serve as
important guides for determining what can be raised in defending against a common-
law privacy claim. Clearly, the two most controversial of the so-called “defences” are
C.L. L. Rev. 329 at 342.
‘.. See e.g. T.I. Emerson, “The Right of Privacy and Freedom of the Press” (1979) 14 Harv. C.R.-
58 Supra note 4.
9 See Lebach, supra note 105 at 393: “Consequently the opposing protected legal interests must be
balanced against each other in each individual case in light of general and specific considerations.”
60 See e.g. Doe v. Roe, 307 N.E. 2d 823 (N.YC.A. 1973), where a psychiatrist published a case
study without sufficiently concealing the subject-patient’s identity.
,61 See supra note 132 at 410-21.
“6 See supra note 130 at 652.
“6 Supra note 2.
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implied consent and public interest. However, it is a mistake to consider these only as
defences, to be assessed after determining whether or not the plaintiff had a reasonable
expectation of privacy in the circumstances. The concepts of “implied consent” and
“public interest” go to the heart of the issue of whether a privacy expectation is itself
reasonable. Both require an assessment of the circumstances in which a private object
has been compromised, and thereby identify the factors to be weighed in the
“reasonableness” balance. Implied consent focuses the analysis on whether, because of
the plaintiff’s behaviour and the context in which the invasion occurred, it is reason-
able to allow him to assert an expectation of privacy. Public interest requires an as-
sessment of whether some societal interest supporting the defendant’s invasion can
outweigh the plaintiff’s individual interest in repelling the invasion. In other words, is
it reasonable to allow the plaintiff to rely on an expectation of privacy despite the
countervailing societal interest?
The following comments concerning public interest and implied consent are there-
fore intended to assist in the application of the “reasonableness” balancing test.
ii. Public Interest/Newsworthiness
Perhaps the most perplexing issue to be confronted in formulating the common-
law tort of invasion of privacy concerns the relationship between the right of privacy
and freedom of expression. This issue arises in the context of the public-exposure as-
pect of the tort where, typically, the defendant has “expressed” certain private things
about the plaintiff to others, and claims that the public interest justified his doing so.
Often, the defendant will be a member of the media, and will argue that the informa-
tion published about the plaintiff was in the public interest because of its newsworthi-
ness. Prosser describes the public-interest justification as follows:
The privilege of giving publicity to news, and other matters of public interest,
arises out of the desire and the right of the public to know what is going on in
the world, and the freedom of the press and other agencies of information to
tell them. “News” includes all events and items of information which are out of
the ordinary humdrum routine, and which have “that indefinable quality of in-
formation which arouses public attention”./’
In Western societies, where the press is both free and aggressive in its news-
gathering function, a conflict is inevitable between the interest of individuals in re-
maining anonymous, and that of the media in reporting aspects of people’s lives that
are deemed newsworthy. The latter’s position is bolstered by the fundamental value of
freedom of expression. Some American commentators have argued that when the free-
speech element is added to the balance, the defendant-“reporter” must prevail. They
claim that the pre-eminent position granted to the First Amendment in American law
is incompatible with the existence of a tort that imposes liability for the publication of
true facts.'” Diane Zimmerman has also argued that the distinction drawn by the
“‘Supra note 132 at 412.
See D.L. Zimmerman, “Requiem for a .Heavyweight: A Farewell to Warren and Brandeis’s Pri-
vacy Tort” (1983) 68 Cornell L. Rev. 291; D. Bedingfield, “Privacy or Publicity? The Enduring Con-
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“publicity” tort between private and newsworthy facts is too vague, and results in a
chilling effect on the press.'”
It would be inappropriate, however, to allow the American jurisprudence to define
the Canadian common-law position concerning the public-exposure aspect of invasion
of privacy. Canadian constitutional jurisprudence does not recognize a hierarchy of
rights:’6 freedom of expression thus has no greater status in our law than other consti-
tutional rights, such as the right of privacy. Section 1 of the Charter” subjects the
freedom of expression that is protected by section 2(b) to the reasonable limits of other
societal values. This has placed the judiciary in the position of having to balance the
free-speech right of one party with the competing interests advanced by the opposing
party, for the purpose of determining whether these competing interests are sufficient
to justify abridging the section 2(b) guarantee. When the Charter-values approach to
the common law is employed, the judiciary must undertake a similar balancing.
In Hill,'” the Supreme Court had to determine whether the common law of defa-
mation was consistent with the fundamental value of freedom of expression, as em-
bodied in section 2(b). A balancing of interests was undertaken: the free-speech inter-
est of the defendant in a defamation action had to be balanced with the reputational
interest of the plaintiff. Interestingly, Cory J. related this reputational interest to the
right of privacy:
[R]eputation is intimately related to the right to privacy which has been ac-
corded constitutional protection. As La Forest J. wrote in R. v. Dyment … pri-
vacy, including informational privacy, is “[girounded in man’s physical and
moral autonomy” and “is essential for the well-being of the individual”. The
publication of defamatory comments constitutes an invasion of the individual’s
personal privacy and is an affront to that person’s dignity. The protection of a
person’s reputation is indeed worthy of protection in our democratic society
and must be carefully balanced against the equally important right of freedom
of expression. ‘
Cory J. concluded that the value of freedom of expression could justifiably be limited
by the common law for the purpose of protecting the reputational and privacy interests
of individuals.”
Although one may not agree with Cory J.’s assimilation of reputational and pri-
vacy interests, his judgment in Hill is conclusive that the common-law tort of invasion
of privacy, which gives effect to the fundamental Canadian value of respecting pri-
fusion Surrounding the American Tort of Invasion of Privacy” (1992) 55 Mod. L. Rev. ill; H.
Kalven Jr., “Privacy in Tort Law – Were Warren and Brandeis Wrong?” (1966) 31 L. & Contemp.
Probs. 326; and generally, C.P. Work, “Whose Privacy?” (1994) 55:1 Mont. L. Rev. 209.
‘ See Zimmerman, ibiL at 305-306.
,67 See Dagenais, supra note 77 at 877.
‘ Supra note 4.
‘6 Supra note 50.
,70 Ibid. at 1179.
‘. See ibid. at 1177. He therefore endorsed the existing Canadian common-law position on defa-
mation, and rejected the stricter “actual malice” rule from American law (see ibid. at 1182-84).
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that the “publicity” tort should be swept aside –
vacy, can co-exist with the fundamental value of freedom of expression. Therefore, in
fashioning a common-law rule governing the public exposure of private life, a balance
must be struck between these two values. The American argument made by Zimmer-
man and others –
cannot succeed in
the Canadian context for the simple reason that in the case of public exposure, free-
dom of expression must compete with another value of equal weight, namely privacy.
Matters concerning public interest and newsworthiness should be taken into ac-
count through the contextual balancing inherent to the reasonableness analysis, and in
particular, should weigh on the side of the scales favouring the defendant. Such an ap-
proach would be similar to the one adopted in Germany, where the courts have devel-
oped a form of proportionality analysis to resolve conflicts between the right of per-
sonality and the freedom to broadcast. The rule that has been adopted is that
[while] the freedom to broadcast may have the effect of restricting any claims
based on the right of personality …. the damage to “personality” resulting from
a public representation must not be out of proportion to the importance of the
publication upholding the freedom of communication.”
Proportionality analysis is also inherent to the reasonableness test adopted under the
four provincial statutes for resolving the competing interests of the media (or any per-
son claiming freedom of expression”3) and privacy claimants. Subsection 4(2) of the
Saskatchewan Act, mentioned above, is an example, as is subparagraph 5(f)(i) of
Manitoba’s The Privacy Act,” under which it is a defence to a public exposure claim
that “there were reasonable grounds for the belief that the publication was in the public
interest”.
In applying a proportionality analysis for the purpose of determining the reason-
ableness of a public exposure, various factors must be considered. These include: (1)
the defendant’s objective; (2) alternatives available to the defendant; (3) the plaintiff’s
status; and (4) the severity of the privacy intrusion.
1. The Defendant’s Objective – The first matter to be considered concerns the ob-
jective advanced by the defendant to justify publicly exposing an aspect of the
plaintiff’s private life. The analysis should thus commence from the point of view
of the defendant. What did the defendant hope to accomplish by placing the
plaintiff in the public spotlight? In Valiquette,”‘ the Court’s conclusion (that the
‘7 Lebach, supra note 105 at 394 [references already omitted in translation].
‘”It is important to keep in mind that a defendant in a public exposure case could be anyone, and
not necessarily a member of the media. It has been suggested that the interests of the media have
clouded the privacy debate in England, and that the rejection of the tort has been motivated primarily
by concerns about restricting the media. This focus on the media has resulted in the denial of privacy
protection to persons whose private life has been exposed by both media and non-media actors (see
“Patchy Law”, supra note 53 at 806-808).
7, Supra note 2. This kind of proportionality analysis is similar to that adopted in Dagenais, supra
note 77, for resolving conflicts between rights under section 1 of the Charter. The Dagenais test re-
quires consideration of the proportionality between the deleterious effects of limiting one right and
the salutary effects of giving effect to another competing right (see ibid at 888-89).
… Supra note 30.
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defendant’s purpose in exposing the plaintiff’s illness was primarily commercial)
proved fatal to the defendant’s public-interest argument. This view is echoed in
the law of Germany, as well as that of France, where the reproduction of photo-
graphs, or the publishing of private information, for “a purely commercial goal”
constitutes an invasion of privacy.’ Thus, in cases involving the public exposure
of a person’s name, voice or image, if the defendant was simply seeking to capital-
ize upon the marketing value of the plaintiff’s personal characteristics (i.e., the
situation in H & W Journal'” or Cher'”), then the reasonableness balance must tip
in favour of the plaintiff. On the other hand, the defendant’s position will be bol-
stered by pointing to some legitimate educational or political rationale underlying
the impugned publication (e.g., using the plaintiff’s image as part of a political
caricature).
2. Alternatives Available to the Defendant – A second factor concerns whether or
not the impugned publication could reasonably have been made without the al-
leged privacy invasion, or with a less serious exposure of the plaintiff’s private
life. If so, then this is a strong indication that the public exposure was unreason-
able. German law requires consideration of whether the specific interest being
served by a broadcast could be satisfied “even without any interference –
or a
less far-reaching interference – with the protection of personality.”” This point is
central to the decision in Valiquette, where the Court concluded that if the purpose
of the impugned newspaper story was simply to expose the hardships faced by
persons with AIDS, as claimed by the defendant, then this could have been ac-
complished without providing details sufficient to identify the plaintiff as an
AIDS victim.”0
3. The Status of the Plaintiff – Whether or not the plaintiff is a public figure will
also be a relevant consideration. Prosser defines a “public figure” as a “person
who, by his accomplishments, fame, or mode of living, or by adopting a profes-
sion or calling which gives the public a legitimate interest in his doings, his af-
fairs, and his character, has become a ‘public personage”‘.’ Because such persons
… See Princess Caroline, BGH NJW 1996, 1128, 1130; Philipe (Paris), supra note 54.
‘n Supra note 155.
,n Supra note 156.
‘”Lebach, supra note 105 at 395.
I See supra note 30 at 314.
m Supra note 132 at 410. Public figures should be distinguished from those who do not seek public
attention, but instead are thrust into the spotlight because of events of public concern in which they
have been involved (e.g., hostages taken during a bank robbery, survivors of a terrorist attack, or the
spouse of an accident victim). In these cases, it seems unjust that the private lives of the individuals
involved should be exposed to public scrutiny in the manner normally reserved for those who actually
seek publicity. Consider Sipple v. Chronicle Publishing Co. (201 Cal. Rptr. 665 (Cal. App. 1 Dist.
1984) [hereinafter Sipple]), where the plaintiff foiled an assassination attempt on the life of President
Ford, and was then revealed by the defendants to be homosexual. Sipple failed in his privacy claim
for two reasons. First, because Sipple was a prominent member of the San Francisco gay community,
the fact that he was homosexual was considered by the Court to be a public, as opposed to private,
fact. Thus, the defendants’ newspaper articles “did no more than to give further publicity to matters
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tend to benefit from publicity, and often court it, their reasonable expectation of
privacy is significantly lower than that of ordinary citizens. They can hardly revel
in positive publicity, yet sue when true facts are published that portray them in a
negative light. They have to take the good with the bad. That does not mean,
however, that they are entitled to no expectation of privacy. The fact that a person
is a public figure does not mean that even the most intimate aspects of their lives
can be exposed to the public, or that their images and names can be exploited
without their consent.
4. The Severity of the Privacy Intrusion – Another factor that is relevant to the rea-
sonableness test is the value, or importance, of the private object that has been
compromised by a public exposure. The need to determine the significance of an
invasion of privacy for the purpose of the proportionality analysis has been rec-
ognized in both German and French law. The German Supreme Constitutional
Court has held that “the required weighting of interests must take into account the
intensity of the infringement of the personal sphere by the broadcast ……2 Simi-
larly, French law has recognized certain “danger zones”, or matters of intimacy,
where public exposure will be difficult to justify. These include matters relating to
health, sexual activities, and death. Generally, it will be presumed that reasonable
persons can expect the most intimate of personal matters to remain private.’3
However, courts will be more deferential to public exposure of non-intimate mat-
ters, such as information concerning a person’s finances.” It is submitted that this
approach should be adopted in the Canadian common law.
which [the] appellant left open to the eye of the public” (ibid. at 669). Second, the Court concluded
that Sipple’s sexual orientation was newsworthy because the matter “was not so offensive … as to
shock the community notions of decency”, and the defendants “were not motivated by a morbid and
sensational prying into appellant’s private life” (ibid. at 670). Sipple is indicative of the pre-eminence
of the Frst Amendment in American law, and of the judiciary’s conservative approach when faced
with a media defendant. if Sipple’s case had arisen in the jurisdictions of Germany or Quebec, where
privacy analysis is premised on reasonableness, his chances of success would have been better (see
text above, accompanying notes 26-33 and 96-105). If his case had been decided in France, he almost
certainly would have succeeded (see e.g. Paris, 20 February 1986, D.S.1986.InfA47 somm, where the
court held that an allegation, real or supposed, that a person is homosexual, no matter what the moral
tone of the article, is an invasion of the right to privacy). Given this, and also in light of the fact that
Sipple and others like him are, at best, involuntary public figures, it is submitted that the American
“community shock” test is inappropriate, and should not be imported into Canadian law.
‘=Lebach, supra note 105 at 394.
‘See Hauch, supra note 33 at 1246-48.
‘ See ibid. at 1260; see Cass. civ. Ire, 28 may 1991, Fressoz v. Lafleur, D.1991.Inf.182. It should
be observed that the severity of a privacy intrusion may well depend on the status of the plaintiff. A
politician who campaigns on a platform of family values can hardly complain if a newspaper pub-
lishes true facts about her propensity for extra-marital affairs. As a public figure, she has courted pub-
licity in a manner which makes the exposure of her private life, at least as it relates to the concept of
family values, newsworthy and in the public interest. However, a similar revelation about an involun-
tary public figure, such as a crime victim, would likely be seen to run counter to that person’s reason-
able expectation of privacy, while the publication of such facts about an “ordinary” citizen would al-
most certainly be considered a most serious invasion of privacy.
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In summary, each public exposure case must be assessed on its own facts in light
of the above four factors, and any other factors that might be relevant. Because both
the plaintiff and the defendant in a public-exposure case are relying on fundamental
values (privacy and freedom of expression, respectively) of equal constitutional
weight, it is necessary to identify all the relevant circumstances and interests support-
ing each side’s position. The plaintiff will prevail if she can demonstrate that one of
her personal objects has been exposed to public scrutiny by the defendant, and that the
reasonableness balance favours her right of privacy over the defendant’s freedom of
expression.
iii.
Implied Consent
While public interest and newsworthiness considerations loom large in most pub-
lic exposure cases, the significance of implied consent” is generally, though certainly
not exclusively, felt in the realm of intrusions. Thus, it is open to a Court to conclude
that, because of the circumstances in which a privacy intrusion has occurred, the
plaintiff has impliedly consented to it, and the defendant has therefore not acted unrea-
sonably. However, the concept of implied consent in privacy law is rife with pitfalls,
and should be approached with great caution, lest technological development be al-
lowed to obliterate our privacy expectations. Consider the hypothetical “surveillance
suburb”, a neighbourhood in which several of the households are equipped with a host
of eavesdropping devices such as video cameras, parabolic microphones and tele-
scopes, all trained on the other houses. The residents of the neighbourhood are all
aware that their every action and spoken word could be monitored by the more
“curious” among them. Does this mean that the residents of the “surveillance suburb”,
by continuing to live there, have impliedly consented to invasions of their private life
by their neighbours?
The case of cellular-telephone scanners provides an example of how courts have
equated general public knowledge that a conversation could be monitored electroni-
cally with implied consent to such monitoring. In Edwards v. State Farm Insurance
Co. and ‘John Doe’,’ the plaintiff telephoned his lawyer using a mobile telephone.
“John Doe’ overheard the call on his radio scanner, came to believe that the conversa-
tion concerned criminal activities, made a tape recording, and delivered it to a United
States attorney. The plaintiff sued, relying in part on Louisiana tort law.'” He failed,
however, because the court declined to find that he enjoyed an “objectively reason-
able” expectation of privacy. Instead, the court preferred the view that a conversation
from a car telephone constituted “material in the public view”, and that scanning such
a conversation was an intrusion upon public, as opposed to private, matters.’s
“‘Prosser discusses the distinct issue of express or actual consent, supra note 132 at 419-20.
“6 833 F. 2d 535 (5th Cir. 1987) [hereinafter Edwards].
M87 more specifically, the plaintiff claimed for invasion of privacy, basing his claim on the right to
privacy expressly recognized in the Louisiana Constitution (art. 1, 5) (see Edwards, ibiz at 540).
” See Edwards, ibid at 540-41.
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Edwards is a good example of the axiom that “bad facts make bad law”.’.” The ar-
gument adopted by the court in holding that there is no reasonable expectation of pri-
vacy in mobile-telephone conversations could be applied to any conversation. Indeed,
everyone knows that a telephone line could be tapped, or that a room might be bugged.
Taking the court’s reasoning to its logical conclusion, how could anyone have a rea-
sonable expectation of privacy in a society where everyone should know that technol-
ogy makes possible the surveillance of every action and spoken word? If the court in
Edwards is correct, then a person impliedly consents to an invasion of privacy where
he knows, or should know, that such monitoring is possible.
The “knowledge equals consent” approach is wrong for two reasons. First, knowl-
edge and consent are very different things. While one cannot consent to an invasion of
privacy without having knowledge of it, one can certainly have knowledge of it with-
out consenting to it. Since the Edwards court found implied consent on the mere basis
of knowledge, its reasonableness analysis was fundamentally flawed. Second, if a
plaintiff’s knowledge of surveillance means that she has impliedly consented to it, and
has therefore lost any reasonable expectation of privacy in relation to that surveillance,
then the scope of privacy that individuals reasonably expect to enjoy will decrease
over time, as surveillance capabilities increase with technological development. On
this reasoning, the characters of George Orwell’s Nineteen-Eighty-Four”‘ suffered no
invasions of privacy, since technological development had reduced their privacy ex-
pectations to nil. The better view must be that privacy expectations should be assessed
from a normative perspective.’9′ On this point, the Edwards court might well have
turned its mind to the dangers posed to society by the John Does of this world, who
have nothing better to do than sit in front of their scanners for the sole purpose of
eavesdropping on other people’s telephone conversations.
The real question, which the court in Edwards never confronted, is whether a rea-
sonable person in Edwards’ position should expect to engage in a telephone conversa-
tion without being subjected to surreptitious electronic scanning. This is obviously a
normative issue, which goes beyond the simplistic determination of whether or not
“9 One wonders what the result would have been if Edwards had been having an intimate discus-
sion with his wife, which “John Doe” had scanned, recorded, and then broadcast.
’90 (London: Secher & Warburg, 1949).
“‘ In Bell v. Wolfish, 441 U.S. 520 (1979), the United States Supreme Court was faced with a Fourth
Amendment challenge to certain body-cavity searches in prisons. In dissent, Stevens J., referring to
reasoning in Katz, supra note 94, warned of the dangers of relating a “reasonable expectation of pri-
vacy” to actual knowledge that an invasion of privacy is possible:
At first blush, the Court’s rationale [in supporting body-cavity searches] appears to be
that once the detainee is told that he will not be permitted to carry on any of his activi-
ties in private, he cannot “reasonably” expect otherwise. But “reasonable expectations
of privacy” cannot have this purely subjective connotation lest we wake up one day to
headlines announcing that henceforth the Government will not recognize the sanctity
of the home but will instead enter residences at will. The reasonableness of the expec-
tation must include an objective component that refers to those aspects of human ac-
tivity that the “reasonable person” typically expects will be protected from unchecked
Government observation (ibid at 589).
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monitoring is possible, or whether or not the plaintiff knew that it was possible. In
short, implied consent should be approached from the point of view of a reasonable
person, entitled to the full respect of his dignity and autonomy, and thereby entitled to
enjoy the maximum privacy compatible with life in Canadian society. If, in the plain-
tiff’s circumstances, a reasonable person should be entitled to expect to be secure
against an invasion of privacy, then the plaintiff’s consent to the invasion cannot be
implied.
In identifying the factors to be considered in assessing the existence of implied
consent, relevancy is the key. Any factor which would be relevant in justifying the de-
fendant’s actions in compromising a private object of the plaintiff may be consid-
ered.'” The factors that are most often relevant, at least in the intrusion cases, include
not only the objective of the defendant and the severity of the intrusion (as discussed
above in relation to public interest/newsworthiness), but also where the invasion of
privacy occurred. This is illustrated by the case of Silber v. B.C.TV ‘ There, the plain-
tiff was an-employer involved in a bitter labour dispute. A television crew working for
the defendant was filming a story about the dispute in the parking lot of the plaintiff’s
business, when the plaintiff confronted them and ordered them to leave the premises.
The crew refused, and a scuffle ensued which was filmed, and broadcast on the even-
ing news. The plaintiff sued in trespass, and for invasion of privacy. In considering the
issue of whether the plaintiff’s privacy was invaded in the circumstances of the film-
ing of the scuffle in the parking lot, the court thought it determinative that the parking
lot was in full public view, that the scuffle was easily visible to onlookers, and that the
defendant’s reporters did not set out to intrude upon the plaintiff’s private life. Al-
though the incident occurred on private property, the plaintiff could have no reason-
able expectation of privacy in these circumstances. In essence, by engaging in a public
fistfight, the plaintiff impliedly consented to it being publicly viewed and recorded.
One might compare the decision in Silber with that in Edwards, since in both
cases the courts concluded that the objects involved (i.e., Silber’s image and Edward’s
telephone conversation) could be recorded without resulting in an invasion of privacy.
If the reasonable-expectation analysis focuses on the potential for the monitoring of a
private object, then neither Silber nor Edwards could have had such an expectation,
since a reasonable person would have been aware that the potential existed. If the
analysis focuses on the likelihood of monitoring, then Edwards had a stronger claim to
a reasonable expectation of privacy than Silber, since Silber’s fistfight was more likely
to be seen and recorded (being in full public view) than Edwards’ mobile-telephone
conversation. That result could be different in the future, of course, if scanners were to
become more common. However, a qualitative difference can be seen between the
situations of Silber and Edwards when the analysis shifts to the normative considera-
,2 From this point of view, it is difficult to identify a relevant factor which would justify an ordinary
person eavesdropping on a mobile-telephone conversation, recording it, and making it available to
others. The only factor motivating such activities is prurient curiosity, which is not relevant since rea-
sonable persons are entitled to expect that others will keep their curiosity in check, and thereby re-
spect privacy.
“. (1985), [1986] 2 W.W.R. 609,69 B.C.L.R. 34 (S.C.) [hereinafter Silber].
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tion of whether or not either of them should have been entitled to expect privacy in the
circumstances. In Silber, the plaintiff was in public view, and must have known that
others could see his actions. It is therefore difficult to believe that anyone in his posi-
tion could reasonably have expected his image to remain private. Moreover, those who
witnessed and recorded the fistfight did so by pure happenstance. They were not lying
in wait for an opportunity to see the plaintiff, or capture him on film, and they cer-
tainly did not set out to intrude upon, or expose, his private life. It therefore seems fair
to conclude that Silber implicitly consented to the alleged privacy invasion. In con-
trast, Edwards’ use of a telephone demonstrated his desire to maintain control over
who had access to his communications, thus negating a finding of implied consent.
Moreover, his conversation was intercepted by a defendant whose sole purpose was to
eavesdrop. John Doe was hardly a bystander witnessing a public act by chance. Al-
though it is difficult to conclude that a reasonable person in Silber’s position should be
entitled to assert an expectation of privacy, the circumstances in Edwards lead to the
opposite conclusion.
A troubling case, which illustrates how consideration of irrelevant factors can re-
sult in a finding of implied consent, is Milton v. Savinkoff.'” The plaintiff accidentally
left a photograph of herself topless in the pocket of the defendant’s coat. He discov-
ered it, and proceeded to circulate it to his friends. Her suit under the British Columbia
Privacy Act failed; the court concluded that she did not have a reasonable expectation
of privacy. According to Cooper J., the plaintiff had no qualms about having the pho-
tograph taken, having it developed, or leaving it behind with the defendant. A person
behaving in this manner cannot complain of an invasion of privacy, he reasoned,
where the photograph is subsequently shown to other people.'” In essence, he decided
that such a person has impliedly consented to the public exposure of a private object.
That a defendant like Savinkoff, who has subjected another person to such a hu-
miliating public exposure, could avoid liability under the law of privacy is rather as-
tonishing. Cooper J.’s reasoning is flawed, however, because he found implied consent
on the basis of factors that are entirely irrelevant to the real issue in the case, which is
whether Milton impliedly consented to Savinkoff exhibiting the photograph to his
friends. How is it relevant to that issue that Milton posed for the photograph, or had it
developed? If Cooper J. is correct, then no one could ever have a reasonable expecta-
tion of privacy in their own photographs. Moreover, how could the fact that Milton
accidentally left the photograph with Savinkoff justify his showing it in a manner cal-
culated to embarrass her among her peers? Obviously, Milton could not have com-
plained about the fact that Savinkoff saw the photograph. But surely she had a reason-
able expectation that he would not take advantage of her forgetfulness to expose her to
public ridicule.
Ultimately, Cooper J.’s “blame-the-victim” approach to implied consent demon-
strates not only that irrelevancies can skew the privacy analysis, but also (and perhaps
most importantly) that in determining the factors that are relevant to the existence of a
‘ (1993), 18 C.C.L.T. (2d) 288 (B.C.S.C.).
‘ See ibid. at 291.
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reasonable expectation of privacy, it is essential to characterize the alleged invasion of
privacy carefully. “‘ Courts must avoid implying a plaintiff’s consent by reasoning that
the plaintiff left himself vulnerable by being less-than-vigilant in protecting his own
privacy. Unscrupulous defendants should not be absolved of liability just because the
plaintiff provided them with an opportunity to commit a privacy invasion.
Conclusion
The purpose of this article has been to argue for the recognition in Canada of the
common-law tort of invasion of privacy and to recommend the Charter-values ap-
proach in its definition. With the constitutional entrenchment of the right of privacy in
section 8 of the Charter, it is clear that respect for personal privacy must be considered
a fundamental Canadian value. That value should now be given effect in the Canadian
common law, through a principled development of the tort category that affords relief
for intentional interferences with the person.
In developing the common-law privacy tort, Canadian courts should have re-
course not only to the American jurisprudence, but also to the law in civilian jurisdic-
tions. Quebec case law on the protection of private life has obvious relevance, but so
too does German and French privacy law. Cases decided under the four provincial pri-
vacy statutes will also be of assistance. Moreover, Charter values will continue to as-
sist in defining the requirements and scope of the privacy tort. The value of freedom of
expression, for example, must be considered when assessing the reasonableness of an
invasion of privacy through public exposure. Ultimately, a variety of sources should
be relied upon by the Canadian common-law courts in developing a rich privacy tort
premised on spiritual interests such as dignity, autonomy and security of the person.
This paper is certainly not an exhaustive treatment of the common-law tort of in-
vasion of privacy. Other issues remain to be considered. Two, in particular, have not
been touched upon here: the remedies, including injunctive relief, that should be avail-
able in a privacy claim, and the procedural protections that could be afforded to pri-
vacy claimants.’97 These issues, and others, will no doubt be raised as our courts elabo-
rate the common-law privacy tort. What is most important at present, however, is to
recognize the secure foundation that exists in Canadian common law for the legal
protection of the fundamental value of privacy, and to move forward by developing a
privacy tort which will serve the needs of Canadians in the information age.
‘” For a more detailed criticism of the case, see RH. Osborne, “Case Comment on Milton v. Sav-
inkoff’ (1994) 18 C.C.L.T. (2d) 292 at 295-98.
“‘ I am here referring to the problem of a privacy claimant having to go to court, a public forum,
and thus having to face the potential of drawing even further public attention to her private life. Pro-
cedural safeguards might well be developed to protect a plaintiff from further public scrutiny during
the litigation process.
