Privacy, corrective justice, and incrementalism: legal imagination and the recognition of a privacy tort in Ontario.

• Author: Bennett, Thomas D.C.

This article considers the nature of common law development as exemplified by the recent privacy case of Jones v. Tsige. The author focuses on Jones, in which the Ontario Court of Appeal recognized the novel privacy tort of "intrusion upon seclusion". Using a detailed analysis of the case as its basis, the article explores issues which have much wider significance for the judicial development of privacy laws: the process of incrementai elaboration of the law, the moral impulses at work within it, and the relevance of imagination to its operations. By drawing out these discrete issues and analyzing the role that each plays in Jones, the article offers a framework for examining such questions in future privacy cases. Moreover, this article argues that the judgment in Jones brings valuable clarity to the analysis of the process of common law development. In particular, the essay concludes that the novel privacy tort recognized in Jones is the result of a legitimate incremental development rather than an instance of undue judicial activism.

Cet article se penche sur la nature du developpement de la common law, comme l'illustre le recent arret sur le droit a la vie privee Jones v. Tsige. L'auteur se concentre sur Jones, ou la Cour d'appel de l'Ontario a reconnu un nouveau delit d'>. En s'appuyant sur une analyse detaillee de l'arret, l'article explore des enjeux qui ont une importance beaucoup plus large sur le developpement judiciaire du droit a la vie privee, a savoir le processus d'elaboration progressive de la lei, les impulsions morales qui y sont a l'oeuvre et l'importance qu'a l'imagination pour ses operations. En soulevant ces enjeux distincts et en analysant leur role dans Jones, cette etude propose un cadre permettant d'examiner ces questiens lors des affaires portant sur le droit a la vie privee qui pourront se presenter. En outre, l'article soutient que l'arret Jones clarifie l'analyse du processus du developpement de la common law. Il contclut notamment que le nouveau delit sur le droit a la vie privee reconnu dans Jones est le resultat d'un developpement legitime progressif plutot qu'un cas d'activisme judiciaire injustifie.

Introduction I. A Global Privacy Context A. Jones v. Tsige: An Overview of the Judgment B. Legal Imagination C Qualified Deontology D. Scrutinizing the Judgment in Jones 1. Charter values 2. Corrective Justice 3. Justice Sharpe: an Academic Judge 4. Incrementalism E. Corrective Justice, Tort Theory, and Privacy More Generally Conclusion Introduction

Elaboration of the law relating to invasion of privacy has been proceeding apace in the common law world in recent years (for example, in England and in New Zealand). As such, we might see recent development in this area of the law in Canada as an instance of playing catch-up. Such a view would, however, be wide of the mark. For when I scrutinize the recent Canadian case of Jones v. Tsige, (1) I find that it brings into focus issues that require more judicial and academic work across the common law world (and indeed beyond). These issues are the process of judicial elaboration of the law ("incrementalism" to common lawyers), the moral impulses at work in the law, and the relevance of imagination to its operations. I will examine each of these matters in detail below. And, at the conclusion of this essay, I will use them to point up a contrasting tendency for judges and, in particular, the English academic community to get bogged down in matters of technical detail and to lose sight of these large issues that invest this branch of the law with politico-legal significance.

Jones is particularly worthy of study because it represents a significant incremental step for the common law: the recognition of a novel head of tortious liability. That this has taken place in order to secure protection for a controversial interest, privacy, only adds to the case's importance.

By way of comparison, in England a (more limited, information-focused) tort (2) of "misuse of private information" (3) has been recognized in recent years, and the broad academic consensus is that this English tort is the result of the incremental development of the older equitable doctrine of confidence. (4) The "intrusion upon seclusion" tort recognized in Jones, however, has developed very differently; it has not evolved from a preexisting cause of action. Key to this is the fact that in Jones, Justice Robert J. Sharpe (who gives the lead judgment) makes an appeal to "Charter values" as a justification for extending the scope of tortious liability to cover intrusions upon the plaintiffs privacy. Broadly speaking, this idea bears significant similarity to the notion of "indirect horizontality" (5) under the Human Rights Act in the U.K. (6) But Jones is not simply a matter of the indirect horizontal application of the Canadian Charter of Rights and Freedoms; (7) that horizontality is supplemented by an appeal to another overarching principle which underpins tort law itself: corrective justice. I will explore the role that corrective justice plays in the judgment and will also seek to contribute to a wider academic debate on the position that this concept occupies in tort law more generally.

We will see in Justice Sharpe's judgment in Jones a particular imaginative process that can be analyzed by reference to a notion of "legal imagination". Justice Sharpe's exercise of the "legal imagination" leads him to identify and make use of a particular incremental method to achieve the development he seeks. We will see that he appeals to an established principle underpinning tort law generally: its "protective purpose". (8) I will also note the limits of the (Canadian legal) system in which Justice Sharpe is exercising imagination and delineate the edges of the "space" within which he is operating. (9) Justice Sharpe recognizes that, in order to deflect the most vehement criticism that might be levelled against his judgment, he must point to at least some doctrinal evidence that tort law may protect against intrusions upon privacy. It is noteworthy in this respect that he states that the court has "recognized" rather than created the new tort. (10) Moreover, his assertion that the court should develop the common law in accordance with Charter values pays heed to the notion that higher-order constitutional principles ought to be reflected in burgeoning tortious development while recognizing that the limits of this are to be set by higher courts (in this instance, the Supreme Court of Canada). Finally, I will consider the incremental nature of the development which Justice Sharpe pursues and, ultimately, achieves.

The essay concludes that this development of tort law may properly be classed as an incremental step since it fits two academically-recognized and judicially-accepted models of incrementalism. (11) As such, I will demonstrate how Justice Sharpe's judgment in Jones may be defended against accusations that he has stepped beyond the role of the courts and intruded into the realm of the legislature.

It is also worth mentioning at the outset one aspect of the case with which this paper is not concerned. This is the measure of damages that the court ultimately awarded the plaintiff in Jones and the method by which Justice Sharpe came to his decision on quantum. While it is doubtless an important aspect of the case in its own right, this essay does not intend to engage with it. The reason for this is that the essay focuses on the way in which liability may be established for a novel tort, as opposed to discussing the remedies that may then become available.

As a starting point, it is worth briefly setting Jones within its wider context as part of an emerging global common law trend toward advancing legal protection for privacy interests.

1. A Global Privacy Context

Privacy has long proven a difficult interest for which to provide effective legal protection. But, in recent years, the common law has been rising to the challenge across the world. The United States is often cited as the starting point for privacy torts. The United States has had four distinct privacy torts for around half a century: intrusion upon a plaintiffs seclusion, (12) public disclosure of private facts, (13) placing a plaintiff in false light in the public eye, (14) and appropriation of a plaintiffs name or likeness for gain. (15) The establishment of these four torts in the Second Restatement of Torts (16) was the fruit of the labours of William Prosser, who compiled a taxonomy of privacy interests that had been protected in a range of cases across the United States in preceding years. (17) The tort of intrusion upon seclusion has its roots in Warren and Brandeis' seminal article, "The Right to Privacy", where the authors argued that "the right to be let alone" should find legal protection through the medium of tort law. (18) This tort includes "listening or looking, with or without mechanical aids, into the plaintiffs private affairs ... 'even though there is no publication or other use of any kind' of any information obtained." (19)

In England, the judiciary has consistently refused to recognize a general tort of privacy. (20) However, judges have responded to the enshrining by the HRA of the ECHR into domestic law (21) by fashioning a "new" tort of "misuse of private information" out of the older, equitable doctrine of confidence. (22) Misuse of private information provides limited relief for informational privacy violations, along the lines of the United States' publication of private facts tort. (23) In adapting the common law to give effect to ECHR rights (in this instance, the Article 8 right to "private and family life"), (24) the English judiciary has given a form of indirect horizontal effect to the ECHR. (25) As noted above, it is on the matter of this indirect horizontality that much recent academic commentary and analysis of the state of English privacy law has tended to focus. (26)

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