The common law's hodgepodge protection of privacy.

• Author: Hunt, Chris D.L.
• Position: An Update in the Law of Privacy

1. Introduction

   In the last decade, courts in several Commonwealth countries have recognized discrete actions for the invasion of privacy. These causes of action share many common features, but also contain important differences. (1) In England, the action is aimed at protecting against unwanted disclosures of private information, and is conceptualized not as a tort, but as a modified form of the ancient equitable action for breach of confidence. (2) In New Zealand, there are now two discrete torts of invasion of privacy-one applicable to unwanted disclosures, and the other capturing bare intrusions into private spaces. (3) Australia appears to be following a similar path, although the jurisprudence there is less developed. (4) And in 2012, the Ontario Court of Appeal created a new tort of intrusion upon seclusion in Jones v Tsige, (5) modelled largely on American common law. (6) At present, this tort only applies to intrusions into private affairs, but there are indications that it will evolve to capture unwanted disclosures of private information in the future. (7)

   To date, Ontario is the only Canadian province with a firmly established common law privacy tort, although Nova Scotia may not be far behind. (8) Four other common law provinces (British Columbia, (9) Manitoba, (10) Saskatchewan (11) and Newfoundland and Labrador (12)) have statutory torts of invasion of privacy, modelled loosely on the American common law. (13) Quebec, too, has long had a civil action for invasion of privacy, stemming from its Charter of Rights and Freedoms. (14)

   But what of the privacy protection available to Canadians living in those jurisdictions that lack discrete privacy torts? This paper seeks to answer that question. I begin, in section two, by briefly identifying the key privacy interests (territorial, personal, and informational) that will form the basis of the remaining discussion. In section three, I then canvass a panoply of torts that have long been pressed into service to vindicate what courts here and in England have acknowledged to be invasions of these three privacy interests. From this examination we see that, despite the sometimes considerable effort of courts to protect privacy, this hodgepodge approach suffers from three significant limitations, which are explained in section four. First, there remain gaps in the protection of privacy. Second, invoking a hodgepodge of torts to protect privacy indirectly, rather than directly via a discrete privacy tort, causes conceptual and jurisdictional fragmentation. Finally, this approach is inherently confused and arguably unprincipled. A better way forward, I conclude, is for legislators or courts to act and create discrete privacy torts in those provinces that have not yet done so.

2. Conceptualizing Privacy

   Forty years ago, the prominent philosopher Judith Jarvis Thomson observed that the "most striking thing about the right to privacy is that nobody seems to have any clear idea what it is". (15) Since then, there has been a vast outpouring of literature attempting to define the concept. (16) Despite the many persistent and serious attempts at elucidation, privacy remains a deeply--arguably an essentially--contested concept. (17) Although there is no consensus in the literature about what exactly privacy means, or which specific instances of invasion should be actionable, there is, nevertheless, broad agreement among most privacy scholars that the right to privacy must, at a higher level of abstraction, encompass two broad dimensions. The first concerns what may be called freedom from the unwanted intrusion into private affairs and spaces, and this would capture matters such as unwanted physical touching, examining one's banking records, or peering into private places. The second category concerns freedom from the unwanted disclosure of private information, such as the unauthorized posting of one's diary on the internet. (18) The essential disagreement among scholars is not that privacy must in principle encompass these two dimensions; rather, it is which types of intrusions and disclosures qualify as sufficiently private to merit protection. The resolution of that question (if such a resolution is even possible (19)) quite obviously falls outside the scope of this paper.

   For present organizational (20) purposes, it is sufficient to adopt the Supreme Court of Canada's taxonomy of privacy, as Justice Sharpe recently did for the unanimous Ontario Court of Appeal in Jones when deciding to create a new common law tort of intrusion upon seclusion. (21) His Lordship noted that the Court has long recognized in its Charter jurisprudence three interrelated clusters of privacy interests. (22) These serve to refine our thinking about privacy, if we bear in mind that each of these interests can, in principle, be invaded by both disclosures and intrusions. (23) The first interest is territorial privacy. It "protects the home and other spaces where the individual enjoys a reasonable expectation of privacy". (24) The second is personal privacy. Grounded in the individual's bodily integrity, it protects the "right not to have our bodies touched or exposed to disclose objects or matters we wish to conceal". (25) Finally, there is informational privacy. In relation to this admittedly "evanescent" concept, (26) which is grounded in the notion that "information about an individual is in a fundamental way his own", the Supreme Court has adopted the articulation put forth by the eminent privacy theorist Alan Westin, who described it as the "claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". (27)

3. The Common Law's Hodgepodge Protection of Privacy

   In this section, I adopt the above taxonomy of privacy interests, and examine, under the three broad headings of proprietary, personal, and informal privacy, various causes of action that courts in Canada and England have invoked to protect what are acknowledged to be invasions of privacy.

   (A) Intrusions into Property

   i. Trespass to Land

   Commentators have long noted that trespass can, in principle, provide a measure of privacy protection. (28) This was acknowledged by Ellenborough CJ more than two centuries ago in Burden v Abbott, wherein his Lordship, in the course of adjudicating a trespass action involving unauthorized entry into a home, noted that such behaviour offended the "private repose ... every man [has] in his own house." (29) Similarly, in Merest v Harvey, another trespass case, Gibbs CJ said that exemplary damages could be awarded for the offense caused when a man intrudes on another's property and peers into his windows. (30) An Australian case has since followed suit, awarding exemplary damages in trespass to compensate the plaintiff s hurt feelings where his privacy was invaded by the defendant who installed a secret microphone in his home. (31) A couple of recent Ontario cases have also pressed trespass into service to vindicate invasions of privacy. In Lipiec v Borsa, (32) the defendants counterclaimed that their privacy was invaded when the plaintiffs repeatedly photographed them and installed a security camera on the plaintiffs property to observe the defendants in their own yard. The court awarded $3000 in compensation for trespass and nuisance "occasioned by the deliberate invasion of ... [the defendant's] privacy". (33) Similarly, in Zorz v Attarde, (34) damages were awarded to compensate the plaintiff whose privacy was invaded when the defendant constructed windows that looked directly into his home. (35)

   Although trespass has a certain robustness--being actionable per se, requiring neither intentional conduct (36) nor proof of damages (37)--it suffers from significant limitations as a privacy remedy. To succeed, the claimant must be an "occupier", meaning he has "possession" of the premises, which requires legal or de facto control of the property intruded upon. (38) Hotel guests, lodgers in another's house, and employees typically do not have sufficient possession to sue for trespass. (39) A second limitation is that, as a matter of principle, trespass requires some physical entry onto property. (40) It has thus been held in England that peering from the street into another's house with binoculars, (41) arranging mirrors on one's property in order to see the private activities inside a neighbour's home, (42) and tapping someone's telephone (43) are thus not actionable trespasses. To the extent that the Ontario cases referred to immediately above (Lipiec and Zorz) suggest otherwise, they are, with respect, wrongly decided. That said, the results in those cases can probably be explained by the fact that the claimants in each case bundled their arguments about privacy up with claims for both trespass and nuisance (the latter of which does not require physical entry onto property), and the courts in each case failed to distinguish between these heads when awarding damages. (44)

   Finally, it is also worth noting that the two limits on this cause of action just discussed also mean that trespass is not available where the victim is in a public place, (45) despite growing judicial (46) and academic (47) recognition that a reasonable expectation of privacy can exist in public.

   ii. Private Nuisance

   Private nuisance occurs when the defendant's conduct unduly interferes with the claimant's use or enjoyment of his land. (48) In J Lyons & Sons Ltd v Wilkins, (49) an early decision of the English Court of Appeal, it was said that an actionable nuisance could be pleaded if a person "watches and besets" another's house in order to compel him to act in a certain way. Later, in Bernstein v Skyviews, an English case concerning the photographing of the plaintiffs property from an airplane, Griffiths J said it would be a "monstrous invasion of ... privacy" actionable in nuisance if the defendant subjected the claimant to...