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Breach of Privacy (the NEW tort)


On January 18 2012, the Jones v. Tsige ("Jones") decision was rendered by the Court of Appeal confirming the tort law right to personal privacy in Ontario.  Prior to this ruling, judges at trial level cases had routinely given conflicting decisions regarding a tort law right to personal privacy.

What is meant above by "a tort law right to personal privacy" is that it is now established that when a person wrongfully breaches the privacy of another, a legal right to sue exists. While the right to privacy has been embodied in statute laws (Acts passed by Parliament or the provincial legislature) until the Jones case, the validity of claims seeking remedy under tort law was questionable. Without getting too far off track, it is important to keep in mind that the statute law privacy rights were often restrictive.  For example, the Personal Information Protection and Electronic Documents Act ("PIPEDA") may provide a right to report a breach of privacy to the Office of the Privacy Commissioner of Canada when the government or a business regulated by PIPEDA violates a person's privacy.  However, PIPEDA lacks teeth when a person acting personally (as opposed to in the course of business) violates the privacy of another person.

With breach of privacy established within tort law, persons may now sue to obtain compensation for the injury that arises from breach of privacy rather than merely relying on the right to complain about breach of privacy to a government agency that may only issue a demand to 'cease & desist' and possibly impose a fine but do little to put money in the pocket of the person whose privacy was breached.

The Jones case suggests that the breach of privacy tort is actually made up of four distinctive wrongs: 

  1. The intrusion upon seclusion or solitude or private affairs of a person;
  2. The public disclosure of embarrassing private facts about a person;
  3. The publicity which places a person in a false light in the public eye; and
  4. The appropriation of a person's name or likeness.
The first of the four distinctive wrongs within the breach of privacy tort appears to relate to matters such as voyeurism, spying, peeping tom behaviour, or even opening someone else's mail.  This was the distinctive wrong in the Jones case which involved a bank worker viewing the financial records of another bank worker without authorization or a valid reason for doing so. 

The second distinctive wrong appears to relate to matters such as unreasonably publicizing information that a person prefers to keep private.  A key factor here to keep in mind is that the details publicized may be true. In the past, the tort of defamation was available to those persons whose reputation and feelings were harmed by other persons who publicized false information.  The tort of breach of privacy appears to offer hope for remedy against persons who publicize true information, although it is important to note that in the Jones case spreading details contained within the improperly viewed financial records wasn't the issue.  It will be interesting to see in time how this aspect of breach of privacy is handled by the courts - where will the line get drawn regarding what is fair commentary and what commentary goes too far.

The third distinctive wrong appears similar to the second distinctive wrong, the difference being that it is the way in which a person becomes publicly perceived.  At first glance, it seems that what may be fair commentary about a person in a particular social circle is inappropriate commentary in other social circles.  It will be interesting to see how this aspect of breach of privacy becomes better defined.

The last distinctive wrong appears to involve issues such as impersonation and perhaps identity theft.  Again, future cases shall help refine these parameters.