The Right to Privacy in Verbal Communication: The Legality
of Unauthorised Participant Recording
Jonathan G. Colombo*
The author analyses the right to privacy in
telephone conversations and, in particular, the
legality of unauthorised participant recording.
After reviewing various provincial and federal
acts, as well as relevant common law actions,
the author concludes that such recording is
legal, as is public disclosure of most conversa-
tions. The author then considers the scope of
relevant American federal and state legisla-
tion, and of the American common law right to
privacy. Finally, the author concludes that
absent legislation in Canada prohibiting such
recording, a telephone conversant’s legitimate
expectation
remain
unprotected.
of privacy will
L’auteur examine le droit d’un individu au res-
pect de ses conversations t~l6phoniques pri-
vies et, plus particuli~rement, la 16galit6 de
leur enregistrement, sans consentement, par un
des interlocuteurs. L’auteur passe en revue
diverses lois provinciales et f&lirales, ainsi
que divers droits d’action applicables en com-
mon law. I1 conclut que ce type d’enregistre-
ment est legal et que la majorit6 de ces conver-
sations peuvent atre rendues publiques.
L’auteur examine ensuite la port~e des lois
f~d6rales et celle des 6tats am~icains et du
droit au respect de la vie privde tel qu’6tabli au
niveau du droit commun am~ricain. Enfin,
l’auteur conclut qu’en l’absence de 16gisla-
tions canadiennes prohibant ce type d’enregis-
trement, un individu ne peut 6tre assur6 du res-
pect de ses communications t~lphoniques.
Introduction
In two recent judgments,’ the Supreme Court of Canada held that a police
officer who records a conversation in which he was a participant, without the
consent of all parties or without a court order, violates a person’s reasonable
expectation of privacy in verbal communication. According to the Court, this
particular right flows from section 8 of the Canadian Charter of Rights and
Freedoms,2 which provides that everyone “has the right to be secure against
unreasonable search and seizure”. In light of these decisions, the status of unau-
thorised participant recording between private citizens has become less certain.
This paper addresses the issue.
* M.A., LL.B., student-at-law, Rogers, Bereskin & Parr, Toronto. The author wishes to thank the
partners of Rogers, Bereskin & Parr, for encouraging students to become published authors.
McGill Law Journal 1990
Revue de droit de McGill
1R. v. Duarte, [1990] 1 S.C.R. 30, 65 D.L.R. (4th) 240 [hereinafter Duarte] and R. v. Wiggins,
[1990] 1 S.C.R. 62 [hereinafter Wiggins].
2Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982,
c. 11.
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In brief, the issue is as follows: can one party to a telephone conversation
record that conversation without the knowledge or permission of the other? If
so, can that same party broadcast the tapes publicly, or tender them as evidence
in any civil proceeding? The discussion itself is broken down into two main
headings, the law in Canada and the law in the U.S., and these headings are sub-
divided into three further headings: federal offences, provincial/state offences,
and civil law actions. Consider, first, the law in Canada.
I. The Law in Canada
A. Federal and Provincial Statutory Offences
With respect to criminal liability the law is clear: unauthorised participant
recording of a telephone conversation does not constitute a criminal offence.
According to section 184(1) of the Criminal Code, the only section which is
even peripherally relevant, one cannot “intercept” a private communication
unless authorised by law. This section and the ones that follow are designed to
prevent an unauthorised third party from recording a telephone conversation.
Hence, this section does not prohibit two situations: where one of the partici-
pants to the conversation, with or without the knowledge of the other(s), himself
records the conversation; or where a third party with the consent of one of the
participants intercepts and records the conversation.3
Furthermore, on the basis of the recent Supreme Court decision in R. v.
Stewart,4 it is clear that information does not constitute property in terms of the
criminal law theft provisions. Hence, one party could not argue that the other
is “stealing” information by recording a telephone conversation.5
With respect to non-criminal, public welfare offences, various provincial
statutes are relevant. For example, s. 112 of the Telephone Act,6 provides as
follows:
Every person who, having acquired knowledge of any conversation or message
passing over any telephone line not addressed to or intended for such person,
3See, Law Reform Commission of Canada, Electronic Surveillance, Working Paper No. 47
(Ottawa: Law Reform Commission of Canada, 1986) at 26. See, also, R. v. McQueen, [1975] 6
W.W.R. 604, 25 C.C.C. (2d) 262 (Alta C.A.).
4[1988] 1 S.C.R. 963, 50 D.L.R. (4th) 1.
5The other federal Act directly on point is the Broadcasting Act, R.S.C. 1985, c. B-9 and, in par-
ticular, s. 3(e) of the Radio Regulations, SOR/86-982. This section provides that no “telephone
interview or conversation, or any part thereof’, shall be broadcast by either an AM or FM radio
station, unless the person consents prior to the broadcast or unless the person telephones the station
to participate in the broadcast. Interestingly, this section does not seem to prohibit broadcasting the
contents of the conversation, only the taped converation itself. Further, the Television Broadcasting
Regulations, 1987, SOR/87-49, do not contain a similar prohibition.
6R.S.O. 1980, c. 496.
1990]
NOTES
divulges the purport or substance of the conversation or message, except when
lawfully authorized or directed so to do, is guilty of an offence and on conviction
is liable to a fine of not more that $50.00 or to imprisonment for a term of not more
than thirty days, or to both.
Since this section applies only to third parties, that is, to persons to whom the
conversation is not “addressed” or “intended”, the section in no way prohibits
participant recording.7
Four provinces have enacted privacy acts.’ The acts in Saskatchewan,
Newfoundland and British Columbia create a tort, “actionable without proof of
damage, for a person, wilfully and without a claim of right, to violate the pri-
vacy of another” (B.C. Act, s. 1(1)). The Manitoba Act, however, prohibits a
person “substantially, unreasonably, and without claim of right”, from violating
the privacy of another (s. 2(1)). Thus, the Manitoba Act applies to intentional
as well as “unreasonable” (i.e. negligent) acts.
With respect to electronic recordings, these Acts provide, in pertinent part, as
follows:
3(1) Without limiting the generality of section 2, privacy of a person may be
violated
(b) by the listening to or recording of a conversation in which that person par-
ticipates, or messages to or from that person, passing along, over or through any
telephone lines, otherwise than as a lawful party thereto…. (Manitoba Act,
emphasis added)
3. Without limiting the generality of section 2, proof that there has been:
(b) listening to or recording of a conversation in which a person participates,
or listening to or recording of messages to or from that person passing by means
of telecommunications, otherwise than as a lawful party thereto; …
without the consent, expressed or implied, of the person or some other person who
has the lawful authority to give the consent is prima facie evidence of a violation
of the privacy of the person first mentioned. (British Columbia Act, emphasis
added)
7There are cases which hold that a privacy right has been created by a specific statute. For
instance, in Re Maclssac and Beretanos (1971), 25 D.L.R. (3d) 610 (B.C. Prov. Ct), the Plaintiff
sued his landlord for violation of s. 46 of the B.C. Landlord and Tenant Act, for failure to give
proper notice before entering the Plaintiff’s apartment. The Court held that since s. 46 did not pro-
vide a remedy for infringement, the Act itself “creates a statutory right to privacy” (at 614). Hence
violation of this section constitutes a tort for which damages are available. This holding seems
quite strange in that breach of s. 46 is also a breach of the tenant’s contractual right to quiet enjoy-
ment of his property. Given the availability of contractual damages, recourse to the right to privacy
is unnecessary. Similar reasoning applies in other cases.
8See, the Privacy Act, R.S.B.C. 1979, c.336; the Privacy Act, S.M. 1970, c.74; the Privacy Act,
R.S.S. 1978, c.P-24; the Privacy Act, S.N. 1981, c. 6.
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4. Without limiting the generality of section 3, proof that there has been
(b) listening to or recording of a conversation in which an individual partic-
ipates, or listening to or recording of messages to or from that individual passing
by means of telecommunications, otherwise than as a lawfid party thereto; …
without the consent, expressed or implied, of the individual or some other person
who has the lawful authority to give the consent is primafacie proof of a violation
of the privacy of the individual first mentioned. (Newfoundland Act, emphasis
added)
The Saskatchewan Act states, in s. 1(4), that “Privacy may be violated by
eavesdropping or surveillance”, but does not define either term. Further, s.
2(1)(a) provides that an act is not a violation of privacy where “it is consented
to by some person entitled to consent”.
Although the wording of these sections is somewhat unclear, there can be
no doubt that a participant is a lawful party to a conversation. Since a participant
is a lawful party with respect to “listening”, he must also be a lawful party with
respect to “recording”, since the two acts appear in the same phrase. Further,
since a participant who listens to a conversation is not an eavesdropper, parti-
cipant recording probably does not constitue “eavesdropping or surveillance”
under the Saskatchewan Act. Thus, it seems likely that participant recording is
not prohibited by any of these sections, although there are no cases on point.
B. Civil Liability
1.
Right to Privacy at Common Law
With respect to civil liability, learned opinion varies substantially as to
whether there is, at common law, a right to privacy in Canada. According to
Professor Fleming, only statutory remedies are available for an alleged invasion
of privacy, and “for a private remedy one can only look to nuisance”.9 Although
nuisance law protects the quiet enjoyment of property, it does not create a gen-
eral right to privacy. Such a right must be predicated on a reasonable expecta-
tion of privacy, that is, on a personal right, and not on a right which only flows
from an interest in real property.
As Professor Linden observes, however, “Canadian courts have come near
to recognizing a general right of privacy”.” Consider, for instance, the case of
9J.G. Fleming, The Law of Torts, 7th ed. (The Law Book Co. Ltd: Sydney, 1987) at 574.
‘0A.M. Linden, Canadian Tort Law, 4th ed. (Toronto: Butterworths, 1988) at 52. This right
should be distinguished from misappropriation of personality. The latter prohibits the appropriation
of any commercial value in a name or likeness, whereas the former prohibits the public exploitation
of one’s personal affairs, when one might reasonably expect those affairs to remain private. Hence,
1990]
NOTES
Saccone v. Orr, the only Canadian case which holds explicitly that a common
law right to privacy exists. There, the Plaintiff sued the Defendant for taping a
telephone conversation and for publicly broadcasting that tape without the
Plaintiff’s authorisation. According to Jacob Co. Ct J.,
Certainly, for want of a better description as to what happened, this is an invasion
of privacy and, despite the very able argument of defendant’s counsel that no such
action exists, I have come to the conclusion that the plaintiff must be given some
right of recovery for what the defendant has in this case done.”
It is unclear, however, whether this “invasion of privacy” consists of the
unauthorised recording, of the unauthorised rebroadcast, or of both. In fact, the
Court seems to suggest that the unauthorised recording, without rebroadcast, is
itself an invasion of privacy (at 321). Further, the Court does not address two
key issues: whether the Plaintiff was a public figure and should, therefore, pos-
sess a more limited right to privacy; and whether an expectation of privacy
existed in the contents of the conversation, which seemed to concern a public
matter. Finally, it is unclear whether this case is good law, since no other
Canadian court has held that such a right exists at common law and since the
case has not been cited as authority in subsequent caselaw dealing with privacy-
related issues.
Nonetheless, a number of courts have refused to hold that a right to privacy
does not exist in Canada. In Krouse v. Chrysler Canada Ltd, the defendant used
a photograph of the plaintiff football player in association with the sale of cars.
With respect to a claim for invasion of privacy, Parker I. held as follows:
It may be that the action is novel, but it has not been shown to me that the Court
in this jurisdiction would not recognize a right of privacy. 12
Similarly, in Burnett v. R., Mr. Justice O’Driscoll cited with approval the
reasoning of Parker J., and refused to strike out the Plaintiff’s claim for invasion
of privacy:
In my view, having regard to the present state of the law in this Province, the
words of Parker J. (as he then was), are most apt and this part of the defendants’
application will be dismissed. 13
Finally, in Capan v. Capan, Osler J. refused a similar motion. In Capan,
the female Plaintiff continued to receive harrassing telephone calls after separat-
ing from her husband. Further, she alleged constant visits and even physical
misappropriation protects economic rights whereas privacy protects personal rights. In the U.S., the
appropriation doctrine was originally grounded on the right of privacy. Today it is based on “the
right of publicity”, which is a separate though related tort. See, B. Gray, “The Right of a
Personality to Control the Use of His Name and Likeness in Canada” (1983) 17 P.T.I.C. 1141.
“(1981), [1982] 34 O.R. (2d) 317 at 321-22 (Co. Ct).
12(1970), 3 O.R. 135 at 136, 12 D.L.R. (3d) 463 at 464 (H.C.).
13(1979), 23 O.R. (2d) 109 at 115, 94 D.L.R. (3d) 281 at 288 (H.C.).
McGILL LAW JOURNAL
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abuse. Instead of suing under several torts (like trespass, nuisance or even bat-
tery), she chose to sue under one tort only: invasion of privacy. (In Krouse and
Burnett, other torts were involved.) With respect to the Defendant’s application
to strike out the Plaintiff’s Statement of Claim, the Court held as follows:
In my view, it would not be right, on a motion of this kind, for the Court to deprive
itself of the opportunity to determine, after hearing the evidence, whether such
right exists and whether it should be protected. 4
2.
Breach of Confidence
Although this tort does not create a general right to privacy in confidential
information, and although it does not prohibit the recording of telephone con-
versations, it does prohibit the public broadcast or dissemination of certain
information arising from marital, fiduciary, or vicarious contractual relations.
For instance, in Duchess of Argyll v. Duke of Argyll, 5 the Plaintiff successfully
obtained an injunction preventing her former husband from disclosing, in a
series of newspaper articles, matters relating to their marriage. The Court based
its holding on public policy, namely, that certain kinds of information, when
received, are received in confidence and ought not to be disclosed. Thus, as a
matter of policy, personal information acquired by a spouse or ex-spouse during
the course of a marriage is impressed with a duty of confidence.
Further, there is no doubt that fiduciaries are not permitted to disclose or
use information acquired in confidence. In the leading case of Canadian Aero
Services Ltd v. O’Malley,6 the Supreme Court of Canada held that the “strict
ethic” of fiduciaries applies to “top management” of a company. This ethic pre-
vents the fiduciary from using any confidential information acquired during the
course of employment to compete with a former employer. Further, the fiduci-
ary cannot reveal such information to a competitive third party. Finally, if that
third party uses such information, he may also be liable to the ex-employer17
This fiduciary duty also applies to the contractual relations between
employer-employee, 8 doctor-patient and lawyer-client. For instance, in H. v.
14(1980), 14 C.C.L.T. 191 at 197 (Ont. H.C.). See, also, F.(P.) v. Ontario (1989), 47 C.C.L.T.
231 (Ont. D.C.).
15[1967] Ch. 302.
16[1974 S.C.R. 592, 40 D.L.R. (3d) 371, 11 C.P.R. (2d) 206.
17Liability will depend on how the information was acquired. For instance, the third party may
have committed the following torts: inducement to breach a contract, or wrongful interference with
the business of another. Further, in some cases, courts have awarded damages against an innocent
third party. See, AJ. Weinrib, “Information and Property” (1988) 38 U.T.LJ. 117 at 134.
1SSee, R.G. Hammond, “Breach of Confidence: Assignability of Rights” (1986) 2 I.P.J. 247 at
247-48:
[breach of confidence] is now widely accepted as being a distinct head of equity juris-
diction. That is, it is sui generis. The doctrine is quite unconnected with fiduciary law
and has, in practice, several advantages over that cause of action. For instance, a plain-
tiff does not have to show, as with fiduciary law, that the defendant was a “key”
1990]
NOTES
T.,’ 9 the Court held that a doctor was liable in damages for maliciously publish-
ing the nature of the illness of a former patient whom he was then suing for non-
payment of fees.’0
Finally, there may be a general duty to respect information which is solic-
ited in confidence. In Slavutych v. Baker,2′ the Plaintiff professor provided an
opinion on a colleague who was applying for tenure. The professor had been
told that the opinion would be kept “in confidence”. It was later used against the
professor as a basis for a charge of misconduct. The case reached the Supreme
Court of Canada, where Spence J. held, per curiam, that “confidential commu-
nications, made in good faith, ought not to be used to the prejudice of their
maker as a member of the university community”. Arguably, this case stands for
the proposition that protection will be given to certain communications when
the rules of “fair play” demand it.’ Although these “rules” seem ambiguous, on
the fact of this case, the university’s actions amounted to entrapment, and such
acts are clearly prohibited.
Clearly, there are, however, two major problems with a claim for breach of
confidence. First, absent a fiduciary, contractual or spousal relationship, it is
very difficult to prove that a duty of confidence exists. A Plaintiff must show
that the information is intrinsically confidential and that permitting disclosure
would, in a sense, shock the conscience of the court. This appears to be the rea-
soning in Argyll and Slavutych. Second, it seems that the remedy for breach of
this duty in situations other than business relationships, where economic inter-
ests are at issue, is an injunction only. Thus, absent a loss of profits, courts have
denied compensation for damages resulting from the publication of true, though
confidential material. Consider, for instance, the reasoning in Bingo Enterprises
Ltd v. Plaxton,’ where the court held that “[a]nticipatory breaches may be
restrained, but actual non-contractual breaches are not compensable in the
absence of loss of profit”. Thus, in a non-business relationship, the usefulness
of this tort is limited to enjoining further dissemination of. certain types of
information.
employee. Even lesser employees or persons who had no “regular” contact with the
plaintiff may well be within the reach of the breach of confidence doctrine.
19(1979), 2 L.N. 202 (Q.B.), cited in Proudfoot, infra, note 29.
20Further, certain taped communications between lawyers may be inadmissible evidence. Since
settlement negotiations made “without prejudice” are fully privileged, it appears that an unautho-
rised participant recording of settlement negotiations would similarly be privileged. Thus, the tapes
would be inadmissible at trial.
21(1975), [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224, 4 W.W.R. 620.
22See, E.F. Geddes, “The Private Investigator and the Right to Privacy” (1989) 27 Alta L. Rev.
256 at 283.
v. Price Waterhouse) (C.A.).
23(1986), 26 D.L.R. (4th) 604 at 614,41 Man. R. (2d) 19 at 25 (sub nom. Bingo Enterprises Ltd
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3.
Wilful Infliction of Emotional Distress
Like the tort of breach of confidence, this tort in no way prohibits partic-
ipant recording. Nonetheless, on the basis of Wilkinson v. Downton, the broad-
cast of certain information may be actionable. According to Wilkinson, a person
is liable if he wilfully does an act calculated to cause harm to another, and if the
act causes both mental distress and physical harm to the other. In Wilkinson, the
Defendant falsely informed the Plaintiff that her husband had been severely
injured in an accident. This “news” caused the Plaintiff both mental and physi-
cal harm, and at trial, the Defendant was held liable for intentionally inflicting
emotional distress resulting in physical harm. Interestingly, since the Defendant
appeared to lack malice, being a “practical joker”, it seems that proof of malice
is not required.’
Similarly, in Janvier v. Sweeney6 the Plaintiff recovered damages where
the Defendants, two private investigators posing as police officers, falsely
informed the Plaintiff that her German fianc6 might be a German spy. The pur-
pose of the accusation was to get the Plaintiff to turn over certain incriminating
letters in the possession of her employer. The accusation caused the Plaintiff
severe mental shock which resulted in physical harm (the Plaintiff became ill).
Although both cases deal with disclosure of false information, given the
definition of the tort, there is no reason in theory why the broadcast of a private
conversation concerning true matters could not be calculated to cause emotional
harm, and could not, in turn, produce physical harm. One need only imagine an
intimate conversation taped by means of an act of extreme duplicity, which is
then broadact publicly, causing one party extreme emotional and physical dis-
tress. Nonetheless, if physical harm remains a sine qua non of the tort,27 its use-
fulness is quite limited.
4.
Quebec Civil Law
In Quebec, section 5 of the Charter of Human Rights and Freedoms2 pro-
vides that “Every person has a right to respect for his private life”. Although
24[18971 2 Q.B. 57.
25Further, Canadian courts seem willing to impute an intention to harm when acts of extreme
recklessness are at issue. See, H.L Glasbeek, “Outraged Dignity – Do We Need A New Tort?”
(1968) 6 Alta L. Rev. 77 at 89-90 (and cases cited therein).
26[ 19 19] 2 K.B. 316.
27Some writers argue that physical harm may no longer be a necessary condition of recovery,
and that even if it still is, it should now be abandoned. See, H.J. Glasbeek, supra, note 25 at 93.
Others suggest that a court, when faced with an appalling act causing severe emotional distress,
will overlook the need for physical harm. See, E.F. Geddes, supra, note 22 at 275.
28R.S.Q., 1977, c. C-12.
1990]
NOTES
there appear to be no privacy cases decided under this section, there have been
several cases since the late 1800s decided under Article 1053 of the Civil Code
of Lower Canada. This article forms the basis of delictual (tort) liability. In
1874, for instance, the Quebec Superior Court awarded damages for the unau-
thorised opening of a letter.29
More recently, in Robbins v. CBC (Quebec),” the Court awarded damages
in an invasion of privacy action. In Robbins, the Defendant broadcast a pro-
gramme which revealed the Plaintiff’s telephone number and which asked view-
ers to contact him at that number. For three days, until the Plaintiff changed his
number, his telephone rang non-stop. Scott A.C.J. had no difficulty characteri-
sing the Defendant’s conduct as “a form of malicious mischief or a premeditated
way of causing a public nuisance to the doctor.” In other words, the Defendant
violated the duty of care owed to the Plaintiff by broadcasting his number in
such a way as to cause injury to the Plaintiff. According to Proudfoot, this
“judgment reinforced the right of solitude which has been upheld in a number
of debt collection cases in Quebec where collection agencies have been held
civilly liable for harassment by telephone and other means used against default-
ing debtors.”‘” Further, Proudfoot argues that the right to anonymity has been
considered in several Quebec judgments, although Plaintiffs have had little suc-
cess in obtaining an injunction or damages absent commercial exploitation of
their name or likeness.32
Despite the existence of a limited right to seclusion and anonymity, there
seems to be no general remedy for the disclosure of personal information under
Quebec Civil Law.33 In other words, since the broadcast of an unauthorised rec-
ording by a person not standing in a marital, fiduciary or contractual relation
does not constitute a “fault” pursuant to Article 1053, it appears that such broad-
casts cannot be enjoined.
29Cordingly v. Nield (1874), 18 L.C.L 204, cited in G.F. Proudfoot, Privacy Law and the Media
in Canada (Ottawa: Canadian Bar Foundation, 1984) at 16.
30[19581 C.S. 152, 12 D.L.R. (2d) 35 at 42 (Que. S.C.).
31Supra, note 29 at 16.
32Ibid. See, in particular, Deschamps v. Automobiles Renault of Canada Ltd, [1977] C. de D. 937
(Que. S.C.), where the Plaintiff comedian obtained an injuction on the basis of his right to privacy,
preventing the unauthorised use of his name or likeness on any advertising for the Defendant’s
cars.33H.P. Glenn, “The Right to Privacy in Quebec Law” in D. Gibson, ed., Aspects of Privacy Law;
Essays in Honour of John M. Sharp (Toronto: Butterworths, 1980) 86.
McGILL LAW JOURNAL
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H. The Law in the United States
A. Fourth Amendment Protection
With respect to a telephone conversation recorded without warrant by a
police officer or federal agent, the caselaw is clear: such recording does not vio-
late the Fourth Amendment. 4 Further, the recording is admissible in court pro-
vided at least one participant consented to the recording or interception of the
conversation.35
A leading case on point is Lopez v. U.S.,36 the facts of which were as fol-
lows. An internal revenue agent, in an attempt to obtain evidence of an
attempted bribe, recorded a conversation he had with the Defendant by means
of a recording device strapped to his person. The U.S. Supreme Court, affirming
the decisions of the lower courts, held that the conversation, though electroni-
cally seized without warrant, was admissible to corroborate the direct testimony
of the informer. The Court based its holding on the following argument:
this case involves no “eavesdropping” whatever in any proper sense of that term.
The Government did not use an electronic device to listen in on conversations it
could not otherwise have heard. Instead, the device was used only to obtain the
most reliable evidence possible of a conversation in which the Government’s own
agent was a participant and which that agent was fully entitled to disclose.37
Similar reasoning is found in Katz v. U.S.,38 where Justice White held as
follows:
When one man speaks to another he takes all the risks ordinarily inherent in so
doing, including the risk that the man to whom he speaks will make public what
he has heard. The Fourth Amendment does not protect against unreliable (or law-
abiding) associates…. It is but a logical and reasonable extension of this principle
that a man takes the risk that his hearer, free to memorize what he hears for later
verbatim repetitions, is instead recording it or transmitting it to another.
Finally, in U.S. v. DeVore,39 the Court held as follows:
34The Fourth Amendment provides as follows:
The right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
35 0f course, the Fourth Amendment only applies to the government (both state and federal), and
not to personal litigants: Griswold v. Connecticut, 381 U.S. 479 (1965).
including Hoffa v. U.S., 385 U.S. 293 (1966) and U.S. v. White, 401 U.S. 745 (1971).
36373 U.S. 427 (1963).
37Ibid. at 439. This holding has been affirmed in several other U.S. Supreme Court decisions,
38389 U.S. 347 at 363 (1967).
39423 F.2d 1069 (C.A. 4th Cir.) (cert. den. 402 U.S. 950).
1990]
NOTES
When a defendant has a conversation with another person he relinquishes his right
of privacy with respect to that person. He may constitutionally complain of breach
of privacy by an eavesdropper, but not of a breach of trust by the person he
chooses to trust, however unwisely. Since the participants in a conversation are
privileged to tell what was said, it necessarily must follow that a recording of what
was said may either be used to corroborate the revelation, or simply as a more
accute [sic] means of disclosure.
Hence, in terms of participant recording, the right to privacy as guaranteed by
the Fourth Amendment clearly applies only when an unauthorised third party
intercepts a private telephone communication.
B. Federal Legislation
The Omnibus Crime Control and Safe Streets Act,4 requires that a federal
officer obtain a warrant before engaging in certain types of electronic surveil-
lance. Section 2511, subsection 2(c), however, specifically exempts a telephone
conversation from the warrant requirement if one party consents to its recording
or interception. That subsection provides as follows:
It shall not be unlawful under this chapter for a person acting under color of law
to intercept a wire, oral or electronic communication, where such person is a party
to the communication or one of the parties to the communication has given prior
consent to such interception.4! ‘
Hence, in Commonwealth ofPa v. Donnelly.2 Price J. held that the tape of a rec-
orded conversation was admissible in court since a participant to the conversa-
tion had authorised the recording. This reasoning has been affirmed in a large
number of cases.43
C. State Common Law
1.
Right to Privacy
In most American states, there exists at common law a general right to pri-
vacy. Since the common law in each state is determined by the courts of that
state, the common law often differs from one state to the next. Nonetheless, by
4018 U.S.C.A. (1970).
41[Emphasis added]. Subsection 2(d) exempts a person not acting under colour of law from crim-
inal liability, provided that the person is a party to the communication or is authorised by a party
to the communication, and provided that the communication is not intercepted for the purpose of
committing an act that is criminal or tortious under federal or state law. In Park v. El Paso Bd of
Realtors, 764 F.2d 1053, cert. den. 474 U.S. 1102, the Texas Court of Appeal held that taping con-
versations to preserve evidence for a civil trial was not an “injurious act” within the meaning of
s. 2(d).
42336 A.2d 632 at 639 (S.C. 1975).
43See, e.g., Bakes v. U.S., 350 F. Supp. 547 (N.D. Ill., E.D. 1972).
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looking at the jurisprudence as a whole, various general observations are
possible.
With respect to participant recording by a party not acting in the course of
law enforcement or governmental duties, there are no cases in which the non-
consenting party was successful in alleging a violation of his common law right
to privacy per se. Indeed, there are several cases to the opposite effect. For
instance, in Marks v. Bell Telephone Co. of Pa,” the Court found no
Pennsylvania appellate cases in which the invaded interest was the privacy of
one’s conversations. The Court then analysed the caselaw from other jurisdic-
tions, and concluded as follows:
all [cases] indicate the interest the law seeks to protect is the right to keep one’s
private conversations safe from unauthorized listeners. Thus a basic element of
this form of the tort is the intentional overhearing by one not intended to be a party
to the communication of the contents of a private communication. In the absence
of an overhearing of a private communication, this tort has not been committed.45
2.
Right to Confidentiality
The common law right to confidentiality, which forms part of the common
law right to privacy,46 applies when a participant to a conversation discloses
publicly,47 private facts in which the speaker has a reasonable expectation of pri-
“Pa., 331 A.2d 424 at 430.
45lbid. at 431 [emphasis added]. Support for this conclusion is also found in the various texts
on tort law. In the sections dealing with privacy rights, none of those texts lists, as a cause of action,
the recording of a telephone conversation by a party to the conversation. In J.D. Lee & B.A.
Lindahl, eds., Modern Tort Law (Cum. Supplement) (Callaghan & Co.: Illinois, 1989) at s. 35.07,
p. 226, the authors list “eavesdropping on a private conversation” as an actionable offence, but
define “eavesdropping” as third-party interception of a telephone communication. Similarly, in
W.P. Keeton, ed., Prosser and Keeton on The Law of Torts, 5th ed. (St. Paul, Minn.: West
Publishing Co., 1984) at s. 117, p. 854, the authors note that the tort of “unreasonable … intrusion
upon the seclusion of another” has “been carried beyond such physical intrusion, and extended to
eavesdropping upon private conversations by means of wiretapping and microphones”. The cases
in support of the “eavesdropping” prohibition all concern electronic recording by third parties.
“For a discussion of the right to confidentiality, see Martinelli v. District Court in and for
Denver (City and County), 612 P.2d 1083 at 1091 (Col. S.Ct 1980). Further, according to the
Restatement (Second), Torts, s. 652A, invasion of privacy encompasses four distinct types of
activity:
(1) unreasonable intrusion upon the seclusion of another (s. 652B)
(2) appropriation of the other’s name or likeness (s. 652C)
(3) unreasonable publicity given to one’s private life (s. 652D)
(4) publicity that unreasonably places the other in a false light (s. 652E).
Finally, according to the courts, the third prohibition is predicated on a general right to confiden-
tiality in one’s private affairs. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), where
the U.S. Supreme Court adopted this four-part classification.
4 7In the U.S., there is no cause of action for a purely private disclosure. Thus, a certain degree
of general publicity is required. See, e.g., Polin v. Dun & Bradstreet, Inc., 768 F.2d 1204 (C.A.
10th Cir. 1985), where the distribution of credit reports to a limited number of subscribers was held
not to constitute an invasion of privacy. See, also, Lee and Lindahl, supra, note 45 at s. 35.02, p.
3. By analogy, therefore, evidence adduced in court, which is made public to a select group of indi-
1990]
NOTES
vacy, and in which the state has no legitimate interest. Further, such disclosure
must be in a form that is highly objectionable to a reasonable person of ordinary
sensibilities.48
The right to confidentiality is of particular interest since the manner in
which the information is obtained is not determinative of whether this tort has
been committed.49 Thus, the fact that participant recording is legal does not
mean that publicising that recording (by rebroadcast) is also legal. In other
words, whether the method of obtaining information is legal and whether pub-
lication is legal, are two separate questions involving two different torts.
Clearly, this tort requires public disclosure of intimate details about a per-
son’s life. According to Byron, Harless, Schaffer, Reid and Associates, Inc. v.
State of Fla ex rel. Schellenberg,” there is a “descending order of sensitivity and
constitutional interest”, pursuant to which the Plaintiff’s objective expectation
of non-disclosure is to be determined. At the top of this ranking are any mate-
rials or information which reflect the “intimate relationships” of the Plaintiff
with other persons. Below the top tiers,
the progressively lower tiers would include [the Plaintiff’s] beliefs and self-
insights; his personal habits; routine autobiographical material; and finally, his
name, address, marital status, and present employment, which together may con-
stitute his irreducible identity to anyone who has reason to acknowledge his exis-
tence.
51
viduals, may not constitute public dissemination. Further, the various Canadian privacy acts, if
applicable, provide the same defences to public disclosure (namely, “fair comment” and “privi-
lege”) as are available under provincial defamation Acts (see, infra).
48According to Modern Tort Law, supra, note 45 at s. 35.08, pp. 13-14, the following factors
must be balanced when determining the scope of this common law right: (1) Does the Plaintiff have
a legitimate expectation that the material or information will not be disclosed?; (2) Is disclosure
required to serve a compelling state interest?; (3) If so, will disclosure occur in the least intrusive
manner with respect to the right to confidentiality? See, also, Prosser and Keeton on The Law of
Torts, supra, note 45 at s. 117, pp. 856-57, which phrases the test as follows: (1) is there public
disclosure (2) of private facts, and is the disclosure (3) highly offensive and objectionable to a rea-
sonable person of ordinary sensibilities? The Restatement (Second), Torts, at s. 652D (d), adds a
fourth condition: the public must not have a legitimate interest in having the information made
public.
49See, Virgil v. Time, Inc., 527 F.2d 1122 at 1126 (C.A. 9th Cir. 1975). In this case, a reporter
for Sports Illustrated legally acquired information from an individual who was to be the subject
of a future article. Before publication of the article, the subject withdrew his consent to publication.
The Court held that “[tihe offense with which we are here involved is not the intrusion by means
of which information is obtained …; it is the publicizing of that which is private in character”.
Further, at 1127, the Court held that “voluntary disclosure by Kirkpatrick [the subject] did not in
itself constitute a making public of the facts disclosed”. For both reasons, the Defendant publica-
tion’s motion for summary judgment was denied.
50360 So. 2d 83 at 95 (Fla C.A. 1978).
51Ibid. This passage is also cited with approval in Martinelli, supra, note 46 at 1092. See, also,
Virgil, supra, note 49 at 1126, which cites with approval the Restatement (Second), Torts (Tentative
McGILL LAW JOURNAL
[Vol. 35
Since the “top tiers” of information are protectible, this tort may prohibit disclo-
sure of “intimate” telephone communications. Nevertheless, there are no
American cases on point, and obviously no Canadian cases which recognise the
existence of this tort.
Further, it is arguable that neither financial information in particular, nor “busi-
ness” information in general, concerns the private life of an individual. In other
words, a corporate Plaintiff cannot avail itself of this particular right. This con-
clusion might be supported by the following arguments. First, it is difficult to
see how public disclosure of business information would be “highly offensive
and objectionable to a person of ordinary sensibilites”. Indeed, all the common
law privacy cases dealing with the right to confidentiality concern public disclo-
sure of personal information. None concerns public disclosure of business infor-
mation (which cannot be “embarrassing” or intrinsically private in quite the
same way). Second, the right to confidentiality evolved as a separate tort pre-
cisely because few remedies existed to prevent public disclosure of embarrass-
ingly personal information. In business relationships, however, other remedies
exist to prevent public disclosure of confidential information (such as breach of
contract, breach of trust and breach of confidence). Thus, there is no reason to
apply this tort to business conversations.
3.
Intentional Infliction of Emotional Distress
Another possible cause of action, which does not require the illegal gath-
ering of information, is the tort of intentional infliction of emotional distress. In
the Restatement (Second), Torts, this tort is defined as follows:
One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional dis-
tress, and if bodily harm to the other results from it, for such bodily harm.
Unlike the Canadian tort of wilful infliction of emotional distress, this American
tort does not require the presence of physical harm. Further, the American tort
applies to intentional as well as reckless (i.e. negligent) acts.
The leading case on point is Hustler Magazine v. Falwell,52 which con-
cerned an article published by the Defendant magazine. This article described
an incestuous (though fictitious) encounter between the Reverend Falwell and
his mother (the account was described in a disclaimer as fictitious). The U.S.
Supreme Court held that the Plaintiff, Jerry Falwell, was not entitled to damages
because the statements at issue were fictitious. Since the Court did not decide
Draft No. 21, 1975). Section 652C concerns the scope of the term “private life”, and reads in per-
tinent part as follows:
The rule stated in the Section applies only to publicity given to matters concerning the
private, as distinguished from the public, life of the individual [emphasis added].
52108 S. Ct 876 (1988).
1990]
NOTES
if damages would be available if the statements were factual, the scope of this
tort is as yet undetermined.
A further source of confusion is the relationship between this tort and the
actual malice requirement. This requirement was first articulated in New York
Times Co. v. Sullivan,53 which held that when suing for defamation, a public fig-
ure Plaintiff must prove that the article is defamatory and that the Defendant
published with knowledge of falsity or with reckless disregard of the truth. In
Hustler, the U.S. Supreme Court held that in addition to proving false state-
ments of fact, a public figure plaintiff must also prove actual malice. Since the
Court based its holding on the distinction between statements of fact and state-
ments of opinion (the latter includes fiction, satire and parody and is constitu-
tionally protected speech), the holding vis-a-vis actual malice is obiter. Thus,
according to various authorities,’
it is still unclear whether a public figure
plaintiff must prove actual malice as a condition of recovery. Of course, a pri-
vate figure plaintiff need only show an intent to publish.
Whether Canadian courts will expand the ambit of the Canadian tort in
light of its American cousin is unclear.” If so, the expanded tort would provide
a Plaintiff with a possible remedy if the broadcast of a taped conversation con-
stitutes “extreme and outrageous” conduct, and if it causes the Plaintiff “severe”
emotional distress. Further, since there is no requirement of physical harm and
since recklesness is sufficient for liability, the rights of the Plaintiff under this
tort would be greatly increased. Finally, since the actual malice standard has not
(as yet) been adopted in Canada, public figure Plaintiffs could potentially bene-
fit from this tort as well.
4.
State Legislation
Since criminal law is a matter of state jurisdiction, some states have pro-
hibited by statute the recording of telephone conversations while others have
not. The caselaw in the states which have prohibited such recording deals with
the scope of the applicable statutory provision, usually focusing on the defini-
tion of the word “intercept”,56 or on whether “any party thereto” means “all par-
53376 U.S. 254 (1964).
M4See, e.g., Farnham, “Free Speech and Freedom from Speech: Hustler Magazine v. Falwell, the
New York Times Actual Malice Standard and Intentional Infliction of Emotional Distress” (1988)
63 Indiana L.. 877.
55For instance, no reference to the American tort appears in G.H.L. Fridman, The Law of Torts
in Canada (Toronto: Carswell, 1989).
56In Pennsylvania, see Parkhurst v. King, 266 F. Supp. 780 (D.C. Pa 1967), holding that the
word “intercept” did not prohibit participant recording; but see Commonwealth of Pennsylvania v.
McCoy, 275 A. 2d 28 (Pa Supr. Ct), holding that use of an induction coil device by the victim of
threatening telephone calls to record those calls and simultaneously to amplify them so that they
would be audible to anyone in the room, constitutes an “interception”.
REVUE DE DROIT DE McGILL
[Vol. 35
ties thereto”, 7 or on whether the prohibition against recording a “confidential
communication” permits participant recording of a non-confidential communi-
cation. 8 This caselaw is of limited relevance since there is no such legislation
in Canada and will not be pursued further.
MII. Future Developments
Since the Fourth Amendment in the United States does not prohibit unau-
thorised participant recording and since the common law right to privacy does
not prohibit it either, protection in the U.S. against public disclosure of personal
(but true) information must be based either on state legislation, on the common
law right to confidentiality, on breach of confidence, or on intentional infliction
of emotional distress.
As mentioned above, there are no Canadian cases dealing with the com-
mon law right to confidentiality. Further, the Canadian privacy statutes do not
explicitly create such a right. 9 Nonetheless, these acts do not purport to exclude
other privacy rights which may exist within the statutory tort itself’ Hence, the
fact that participant recording is not specifically prohibited does not necessarily
mean that it is permissible. The issue, then, is the scope of each statutory tort.
57This issue was litigated constantly in Illinois. Based on two recent cases, however, it appears
that only one party need consent. See, People v. Knight, 327 N.E. 2d 518 at 529 (C.A. Ill. 1975)
and People v. Drish, 321 N.E. 2d 179 at 183-84 (C.A. Ill. 1974).
581n California, see Rogers v. Ulrich, 125 Cal. Rptr 306 (C.A. 1st Distr. 1976), holding that the
communication must be confidential; but see People v. Wyrick, 144 Cal. Rptr 38 at 42 (C.A. 3rd
Distr. 1978), where the Appeal Court held that the trial Judge’s focus “upon the subjective expec-
tations of the parties, as those expectations bore upon probable re-communication of the content
of the conversation, was thus error”. California appears to be one of the few states that uses the
word “confidential” in its statute prohibiting participant recording. Other states simply prohibit any
unauthorised recording. If a similar law is adopted in Canada, it would be preferable to prohibit
unauthorised recordings irrespective of whether the contents may be viewed, subjectively or objec-
tively, as confidential. The purpose of such a law would be to protect a reasonable expectation of
privacy, and such an expectation surely exists in a telephone conversation, which usually occurs
in the privacy of one’s home or office, where the intention almost always is to communicate in pri-
vate with one or perhaps several people.
59It is arguable, however, that the right to confidentiality is a key element of any privacy right.
Consider, for instance, the definition of privacy in Duarte, supra, note 1 at 46:
If privacy may be defined as the right of the individual to determine for himself when,
how, and to what extent he will release personal information about himself, a reason-
able expectation of privacy would seem to demand that an individual may proceed on
the assumption that the state may only violate this right by recording private commu-
nications on a clandestine basis when it has established to the satisfaction of a detached
judicial officer that an offence has been or is being committed ….
On the basis of this somewhat tentative definition, it appears that the right to privacy embodies the
right to control the release of personal information. In the civil context, the corollary of this right
is the right to prevent disclosure of such information, in other words, a right to confidentiality.
6See, s. 1(4) of the Saskatchewan Act; the relevant sections in the other Acts refer to not “lim-
iting the generality” of the tort itself. See, supra, text following note 8.
1990]
NOTES
On this point, the scope of the American constitutional right to privacy is of
obvious relevance. As mentioned above, participant recording of telephone con-
versations and the tendering of those tapes into court, does not violate the right
to privacy created by the 4th Amendment. Will Canadian courts give more
“teeth” to statutory privacy rights than American courts have given to the
Fourth Amendment?
Based on the recent cases of R. v. Duarte and R. v. Wiggins, the answer
appears to be “yes”. In both cases, the Canadian Supreme Court held, with only
Lamer J. dissenting, that an undercover police officer could not legally record
a conversation in which he was a participant, without either the consent of all
parties or a court order. Since neither condition was met, the recording at issue
violated s. 8 of the Charter.
Duarte and Wiggins are of judicial importance for at least three reasons.
First, they overrule a series of lower court decisions which held that participant
recording does not violate s. 8 of the Charter. Second, they render inapplicable
the distinction in American caselaw between third party interception of a con-
versation and unauthorised participant recording of a conversation. In the
United States, courts distinguished between the two on the basis that in cases
of participant recording, the speaker should bear responsibility for the actions
of the person with whom he voluntarily communicates. Conversely, the speaker
should not bear the risk that a third party will intercept a conversation. The
Canadian Supreme Court, however, focussed on the effect of such recording,
holding that both forms of electronic surveillance have a serious effect on a per-
son’s legitimate expectation of privacy.6 Hence, a distinction based on the
means by which the recording is made, whether by microphone glued to a wall
or by one attached to a body, is essentially irrelevant since the harm to privacy
in both cases is the same.62
Duarte and Wiggins are relevant only with respect to government agents
since the Charter does not apply to personal litigants.’ Nonetheless, these cases
might support the argument that privacy rights subsist in personal and business
telephone conversations under the provincial privacy acts. Consider, first,
61According to Mr. Justice La Forest in Duarte, supra, note I at 44, this distinction in American
caselaw misses the very purpose of regulation:
the regulation of electronic surveillance protects us from a risk of a different order, i.e.,
not the risk that someone will repeat our words but the much more insidious danger
inherent in allowing the state, in its unfettered discretion, to record and transmit our
words. … The very efficacy of electronic surveillance is such that it has the potential,
if left unregulated, to annihilate any expectation that our communications will remain
private.
621bid. at 47, La Forest J.
63See, Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986]
2 S.C.R. 573, 33 D.L.R. (4th) 200, 87 C.L.L.C. 14,002.
McGILL LAW JOURNAL
[Vol. 35
whether a business can sue for invasion of privacy. On this point several recent
Charter cases dealing with privacy rights are of direct relevance.’ Although
privacy rights are probably not covered by s. 7,65 there is a “limited privacy
right” under s. 8. In the leading case of Hunter, Dir. of Research & Investigation,
Combines Investigation Branch v. Southam Inc.,66 the Canadian Supreme Court
held that a warrant should be obtained, if reasonably possible, before searching
the premises of a business. Similarly, in R. v. Rao,67 the Ontario Court of Appeal
held a search of business premises invalid, on the basis that a warrantless search
was not authorised on the facts of the case. The Court also held that the accused,
the owner of the business, could reasonably expect that personal effects stored
in his office would be secure against unreasonable search and seizure. In other
words, the accused had a legitimate expectation of privacy in the use of business
premises.”
Further, according to R. v. Finlay and Grellette,69 and R. v. Sanelli,” the
interception of a private communication constitutes a search or seizure within
the meaning of s. 8 of the Charter. Thus, the legislation authorising interception
must meet the constitutional standard of reasonableness articulated in Hunter v.
Southam.
Although these cases could be used to support the argument that certain
privacy rights adhere to business premises under provincial privacy acts, such
an argument would appear unnecessary.7 In fact, of the three cases decided to
date under the various privacy acts, two concern the rights of a business, and
in neither case did the issue of corporate entitlement arise.72 This result is hardly
surprising in light of the aforementioned Charter caselaw. Why, for instance,
64For a recent discussion of privacy rights under s. 8 of the Charter, see R.T.H. Stone, “The
Indequacy of Privacy: Hunter v. Southam and the Meaning of “unreasonable” in Section 8 of the
Charter” (1989) 34 McGill L.J. 685.
65See, Charbonneau v. College of Physicians and Surgeons of Ontario (1985), 52 O.R. (2d) 552,
22 D.L.R. (4th) 303 (H.C.).
66[1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641, 41 C.R. (3d) 97.
67(1984), 46 O.R. (2d) 80, 40 C.R. (3d) 1, 12 C.C.C. (3d) 97.
68The Court’s introduction of privacy rights under the Charter should be contrasted with the fed-
eral government’s reluctance to legislate a general right to privacy. This reluctance is perhaps best
illustrated by the defeat of a motion in 1981 to add “freedom from unreasonable interference with
privacy, family, home and correspondence” to the Charter. Though supported by the N.D.P. and
the Conservative parties, the motion was defeated because the concept of privacy was seen as “too
vague and ill-defined”. See, D.H. Flaherty, Protecting Privacy in Two-Way Electronic Services
(White Plains, New Jersey: Knowledge Industries Publications, 1985) at 11.
69(1985), 52 O.R. (2d) 632 (C.A.), appeal refused (1986), 54 O.R. (2d) 510n (S.C.C.).
70(1987), 60 C.R. (3d) 142 (Ont. C.A.).
71The Newfoundland Privacy Act, however, specifies in s. 2 that “individual” means “natural
person”, thereby excluding corporations from the benefit of the Act.
72See, Silber v. B.C. Broadcasting Systems Ltd (1986), 25 D.L.R. (4th) 345, [1986] 2 W.W.R.
609, 69 B.C.L.R. 34 (S.C.) and Bingo Enterprises Ltd v. Plaxton, supra, note 23. Neither case dealt
with privacy rights in verbal or telephone communications.
1990]
NOTES
should a corporation benefit from a right to privacy under the Charter and not
benefit from a similar right under a provincial statute?73 Further, if the word
“everyone” in s. 8 of the Charter embraces a corporation, surely the word
“another” (in the B.C. Act) is equally capable of embracing a corporation.74
Since both individuals and businesses possess a right to privacy under pro-
vincial privacy acts, is that right infringed by unauthorised participant record-
ing? Much may depend on when the recording was made and how it is used.
Courts, for instance, may distinguish between personal and business conversa-
tions, and between personal and public use. Moreover, an analysis of the nature
and degree of the invasion, and a balancing of the lawful interests of others, is
specifically required by each of the Acts.7″
With respect to the first distinction, courts may hold that the expectation
of privacy is perhaps less in a business conversation than in a personal conver-
sation. The business conversation, after all, concerns money (not personal
affairs), and any breach of confidentiality can be dealt with by other means,
such as an action for breach of contract, breach of trust or breach of confidence.
Conversely, a court might hold that a right to privacy exists in business conver-
sations for the same reason that it exists in personal conversations –
because,
in both cases, there is a legitimate expectation of privacy.
In personal conversations, however, precious few remedies exist aside
from the tort of invasion of privacy, to prevent the unauthorised broadcast of
embarassingly personal (but true) details about one’s private life. Of course, if
the details are false or inaccurate, public broadcast may constitute defamation.
Further, if the details are false and are spoken with an intent to cause harm, a
claim for wilful infliction of emotional distress may be available. Finally, if the
details are true, a claim for breach of confidence may in certain circumstances
be available. As noted above, however, these remedies are of limited use.
73In terms of Charter rights, the Supreme Court of Canada has held that companies are entitled
to a variety of personal rights, including freedom of expression and association. (For a list of “cor-
porate rights” under the Charter, see A. Petter, “Legitimizing Sexual Inequality: Three Early
Charter Cases” (1989) 34 McGill L.J. 358 at 359, n.3).
74In California, however, the term “person” has been defined in the penal provisions dealing with
the recording of telephone conversations as including “an individual, business association, partner-
ship, corporation, or other legal entity …” (West’s Ann. Pen. Code, s. 632(b)). It appears that a non-
penal statute (like a privacy act) does not require a similarly detailed definition of “person” or
“another”.
75See, e.g., s. 6 of the B.C. Act, s. 1(2) of the Saskatchewan Act and 3(2) of the Newfoundland
Act. In Manitoba, however, this balancing of rights is relevant only with respect to the quantifi-
cation of damages (s. 4(2)).
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[Vol. 35
With respect to how the recording is used, courts may distinguish between per-
sonal and public use. If the recording was made for one’s records76 and not for
public rebroadcast, then the recording has a less intrusive effect on the other
party’s personal life. If the recording is rebroadcast, then, obviously, the record-
ing has a much greater effect. This distinction between private and public use
can be premised on the emerging body of American caselaw dealing with the
right to confidentiality and the need for public disclosure. This right, however,
even if it exists in Canada, requires further expansion if it is to protect anything
more than intrinsically private conversations in which the state has no legimitate
interest.
With respect to the effect of these privacy acts on the future development
of the common law, an interesting problem arises. According to Howell, such
development with respect to true privacy interests (e.g. solitude and seclusion,
the violation of which produces mental suffering), has been pre-empted in those
provinces which have enacted privacy legislation.77 This view, Howell argues,
is strengthened by the decision of the Canadian Supreme Court in Seneca
College of Applied Arts & Technology (Bd of Governors) v. Bhadauria,s which
denied the creation of a common law tort of discrimination in jurisdictions
which provide statutory remedies against discrimination.
If this view is correct, then the common law in the four privacy act provin-
ces will not recognise a common law right to confidentiality.79 This right, there-
76Reporters, for instance, frequently tape conversations to ensure that quotations are correct and
not taken out of context, and to protect themselves against a possible claim of defamation. Further,
according to R.S. Bruser and B.M. Rogers, Journalists and the Law: How to Get the Story Without
Getting Sued or Put in Jail (Ottawa: Canadian Bar Foundation, 1985) at 4-5, unauthorised partic-
ipant recordings are admissible in court provided the following conditions are met: (1) the accuracy
of the recording is proved; (2) the voices on the recording are properly identified; (3) nothing was
added to or deleted from the recording; and (4) the recording is relevant and otherwise admissible
as evidence in the action. If these conditions are met, the tape is treated like a document, and must
be produced for inspection during Discovery.
7R.G. Howell, “The Common Law Appropriation of Personality Tort” (1986) 2 I.PJ. 149 at
190.78[1981] 2 S.C.R. 181, 124 D.L.R. (3d) 193, 2 C.H.R.R.
D1468.
79Other critics, including Professor D. Vaver, concur in this view. In “What’s Mine is Not Yours:
Commercial Appropriation of Personality Under the Privacy Acts of British Columbia, Manitoba
and Saskatchewan” (1981) 15 U.B.C. L. Rev. 241 at 261, Vaver argues that “by specifically legis-
lating on the matter of privacy, the legislature has intended to pre-empt the field and has excluded
any possibility of a common law action for invasion of privacy developing. This is precisely what
has happened in New York”. Further, Vaver argues that if the Ontario right of commercial appro-
priation of personality develops along the lines of the American right to publicity, then the Ontario
right will be substantially wider than the right to privacy under the various privacy acts. Hence,
certain advantages of suing under the Ontario common law right as it may develop (such as the
capability of assignment, exclusive licensing and, possibly, decent after death), would not be avail-
able under the relevant provincial statute. Indeed, in the recent case of Parasiuk and Parasiuk v.
1990]
NOTES
fore, may only exist under statute. Further, even if it exists under statute, it
becomes subject to the defamation defences of “fair comment” and “privi-
lege”.”0 These defences, however, are congruent with the right itself, since the
right presupposes that the public has no legitimate interest in the information
which is revealed publicly. Indeed, even if this right were held to exist at com-
mon law, it is quite likely that the same defences would be available, given the
requirement that the state possess no “legitimate” interest in the information
disclosed.
Further, since statements by witnesses, testimony by experts or reports by
experts, adduced as evidence before a court or a statutory board which possesses
the attributes of a court, are fully privileged,8′ it seems clear that under the var-
ious privacy acts and at common law, the tendering of tapes as evidence into
court would not violate the right to confidentiality or constitute an invasion of
privacy.
Further still, the American tort of intentional infliction of emotional dis-
tress, assuming it exists in Canada, presupposes “extreme and outrageous con-
duct”. Since “fair comment” and “privilege” are neither extreme nor outrageous,
both defences apply to this tort as well. In all likelihood, they would also apply
to the Canadian tort of wilful infliction of emotional distress, in that both “fair
comment” and “privilege” militate against the intention to cause harm.
Finally, an action for breach of confidence would prohibit disclosure only
if the party wishing to disclose stands in a contractual, fiduciary or spousal rela-
tionship with the other party. Absent such a relationship, the possibility of pre-
venting disclosure turns on how the information was obtained. From the case-
law, it appears that only the disclosure of information obtained in a manner that
shocks the conscience of the Court could be enjoined. For these reasons, unau-
thorised participant recording in Canada between private parties remains legal,
as does the right to broadcast publicly the content of most conversations.
Further, given the limited number of restrictions on the right to rebroadcast, it
Cdn Newspapers Co. Ltd, [1988] 2 W.W.R. 737, 53 Man. R. (2d) 78 (Q.B.), Scollin J. held that
no tort of “false light invasion of privacy” at common law existed in Manitoba, since “the proposed
tort … has been expressly rejected by the lawmakers” (at 739, W.W.R.). In other words, if it had
been intended to import the tort into Manitoba, “I am convinced that the legislature would have
mentioned it in s. 3” (at 739, W.W.R.), citing with approval the words of Referee Cantlie whose
order was being appealed.
80See, s. 5(t), s. 4(2), s. 5(2), and s. 2(2) in the Manitoba, Sakatchewan, Newfoundland and
British Columbia Acts, respectively. Further, the British Columbia Act contains a general “news
gathering” defence, which exempts all acts that are “reasonable”, and “necessary or incidental”,
to the ordinary gathering of news. Further, the defences of privilege and fair comment are not avail-
able in Newfoundland, Saskatchewan or British Columbia if the information was obtained in a
manner that itself constitutes an invasion of privacy. Since participant recording is legal, however,
this qualification does not apply.
81See, A.M. Linden, supra, note 10 at 651ff.
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appears that a conversant’s legitimate expectation of privacy in telephone com-
munication will continue to remain largely unprotected. 2
2Interesting, the Law Reform Commission of Canada, in Working Paper 47, supra, note 3 at
28, recommends that unauthorised participant recording remain lawful, since tape recordings of
sounds and conversations is now common practice in business and domestic circumstances. Thus,
“[t]his conduct should not bear the full weight of the criminal law” (citing the 1983 report of the
Australian Law Reform Commission tifled Privacy). Further, the Commission recommends that
such tapes remain admissible as evidence, since “[w]e think it would be wrong … as a general rule
to exclude evidence which may be highly cogent and of great assistance to the trier of fact”.
