The Canadian government has enacted federal and provincial legislation, to protect personal information and privacy interests of individual citizens. In addition to these statutory frameworks, the Canadian judiciary has also been active in creating dialogue around common law causes of action in cases of breach of privacy.
When a Government Entity Breaches Your Privacy
Section 8 of the Canadian Charter of Rights and Freedoms, which is mostly used in criminal context, protects individuals from unreasonable state intrusion. Additionally, Privacy Act protects “an individual’s right to access and correct personal information the Government of Canada holds about them or the Government’s collection, use and disclosure of their personal information in the course of providing services (e.g., old age pensions or employment insurance).”
When a Private Sector Organization Breaches Your Privacy
The Personal Information Protection and Electronic Documents Act, or its provincial variations, set out “the ground rules for how private-sector organizations collect, use or disclose personal information in the course of commercial activities across Canada.”
Common Law Causes of Action
There are scenarios where the parties to a privacy related dispute, are private individuals, and therefore none of the above statutory frameworks apply. For example, a blogger publishes a story about a person without his consent, or someone posts a photo on their Facebook page without the permission of the photo subject or the photographer. None of the above statutes apply to these scenarios. In these situations, a common law cause of action in defamation, misappropriation of personality or inclusion upon seclusion might be available to individuals who want to stop the invasion of privacy and get compensated for the damages done.
Defamation: In the case of defamatory or untrue information, one may have a cause of action in defamation or libel. However, if the information is true, factual and lawful, then defamation or libel might not be the most effective route to take.
Misappropriation of Personality: A plaintiff has to establish two factors. Firstly, the breach of privacy was for a commercial purpose and secondly, the breach “clearly and primarily captured the plaintiff.”
Intrusion upon Seclusion: For a successful claim of intrusion upon seclusion, the plaintiff has to prove three factors. Firstly, the plaintiff has to show that the breach of privacy was intentional. Secondly, the breach can not be legally justified. Lastly, “A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”
