Civil Claims for Violation of Privacy

• Author: Barbara Von Tigerstrom
• Pages: 55-139

55

CHAPTER 2

CIVIL CLAIMS FOR

VIOLATION OF PRIVACY

When someone’s privacy is violated, one potential remedy is a civil

claim against the person or persons responsible for the violation. Civil

claims play a role alongside the administrative and judicial mechan-

isms dealing with concerns about personal information, which are dis-

cussed in later chapters. Depending on the jurisdiction, context, and

nature of the violation, these claims could be based on a specific statu-

tory or common law tort for violation of privacy, other torts or causes

of action, or some combination of these. Canadian law in this area is

still evolving, as the courts recognize new causes of action and adapt

existing ones to addre ss the various types of wrongs t hat fall under the

broad heading of “violation of privacy.” In doing so, they have been

able to draw on experiences in other common law jurisdictions, some

of which are described in Section A below. Following sections will

discuss the statutory tort of violation of privacy that is available in

some provinces, the emergence of common law privacy torts i n Canada,

other causes of action that have been used in this context, and specific

claims available in Quebec.

A. DEVELOPMENT OF THE LAW IN OTHER

COMMON LAW JURISDICTIONS

Although many tort claims are broadly similar across common law

jurisdictions, there are significant differences in the approaches taken

INFORM ATION AND PRIVACY LAW IN CANADA56

to distinct claims for violation of privacy. These differences reflect, in

part, a range of views about the interests that these claims aim to pro-

tect and how they relate to other causes of action with which they may

overlap. A review of these approaches is interesting in its own right

from a theoretical and comparative perspective, and will also be useful

in understanding how Can adian law in this area h as evolved, because it

has been inf luenced in important ways by the law in other jur isdictions.

1) United States

Many discussions of the development of privacy claims in the United

States take as their starting point two highly influential law review arti-

cles. In 1890, Warren and Brandeis called for the recognition of invasion

of privacy as a legal claim in their article “The Right to Privacy.”1 React-

ing to the increasing publication of photographs and “unseemly gossip”

in newspapers,2 they argued that existing protections through the laws

of defamation, copyright, contract, a nd others were inadequate to protect

individuals’ intere sts in the modern era. The right to pr ivacy, which they

famously suggested was “merely an in stance of . . . the more general right

of the individual to be let alone,” was rooted in the principle of “inviolate

personality.”3 Publishing a photograph of a previously private individual

and public discussion of that person’s private affairs were among the

types of conduct against which the right would provide protection.4

Shortly before and after the time that Warren and Brandeis were

writing, US courts accepted some claims for what later came to be

referred to as appropriation of personality, that is, using someone’s

name or image without their consent.5 Over the years that followed,

a variety of other claims were decided, dealing with these and other

1 Samuel D Warren & Loui s D Brandeis, “The Right to Privac y” (1890) 4 Harvard

Law Review 19 3.

2 Ibid at 196. The immediate i mpetus for the article was w idely believed to have

been the unaut horized publication of photograph s from the wedding of Samuel

Warren’s daughter, although hi storical research h as since revealed that to

be unlikely ; press coverage of other events, includ ing deaths and funera ls in

Warren’s family, may have ra ised similar concer ns: Amy Gajda, “What if Samuel

Warren Hadn’t Mar ried a Senator’s Daughter?: Uncovering the Pre ss Coverage

That Led to ‘The Right to P rivacy’” (2008) Michigan State Law Revie w 35.

3 Warren & Brandeis, ab ove note 1 at 205.

4 Ibid at 213.

5 See, for example, Pavesich v New England Life Insuranc e Co, 122 Ga 190, 50 SE

68 (1905). Not all claims were succes sful; see, for example, Roberson v R ochester

Folding Box Co, 171 NY 538, 64 NE 442 (1902), in which a claim for use of a

young woman’s image to advert ise flour failed, le ading to the introduction of a

statute esta blishing the tort in New York.

Civil Clai ms for Violation of Privacy57

types of violations. In another famous article, published in 1960, Dean

William Prosser surveyed these decisions and suggested that they

should best be understood not as examples of a single tort, but rather a

complex of four distinct torts, “which are tied together by the common

name, but otherwise have almost nothing in common” and represent

the invasion of different kinds of interests.6 The four categories he set

out, each with its own rules, are as follows:

1) Intrusion upon the plaintiff’s seclusion or solitude, or into his

private affairs.

2) Public disclosu re of embarrassing pr ivate facts about the plaintif f.

3) Publicity which places t he plaintiff in a fal se light in the public eye.

4) Appropriation, for the defendant’s advantage, of the plaintiff’s

name or likeness.7

Subsequent authors have challenged the assertion that these are dis-

tinct claims with little in common, arguing that common underlying

interests or principles can and should be articulated.8 Nevertheless,

the classification described in Prosser’s article, and later in the Second

Restatement of Torts,9 continues to provide the framework for pri-

vacy-related tort claims across the United States, with some variation

from state to state.10 As we will see below, it has also had an important

influence on the development of common law privacy torts in Canada.

Intrusion upon seclusion applies where the defendant has inten-

tionally intruded, physically or otherwise, into the plaintiff’s private

space or private matters, and the intrusion would be highly offen-

sive to a reasonable person.11 The intrusion could take the form of,

for example, watching or photographing someone in a private place

such as one’s home, reading private correspondence or records, or lis-

tening to or recording a private conversation.12 The intrusion itself is

6 Wil liam L Prosser, “Privacy” (1960) 48 California Law R eview 383 at 389.

7 Ibid.

8 See, for exa mple, Edward J Bloustein, “Privac y as an Aspect of Human Dig nity:

An Answer to De an Prosser” (1964) 39 New York University Law Review 962;

Ruth Gavison , “Privacy and the Limit s of Law” (1980) 89 Yale Law Journal 421;

Neil M Richard s & Daniel J Solove, “Prosser’s Pr ivacy Law: A Mixed Legac y”

(2010) 98 California Law Review 18 87.

9 Resta tement (Second) of Torts (St Paul, MN: American Law In stitute, 1977, Octo-

ber 2018 Update), Ch 28A, Invasion of Privac y [Second Restateme nt].

10Nicole A Moreham & Mark Warby, eds, Tugendhat & Chri stie: The Law of Pri-

vacy and the Media, 3d e d (Oxford: Oxford Univers ity Press, 2016) at 96 [Tugen-

dhat & Christie].

11Second Restate ment, above note 9, § 652B.

12Ibid, § 652B, comment “b.”