PRIVACY LAW

PRIVACY RIGHTS IN ONTARIO

Privacy rights in Ontario are essential for ensuring the protection of personal information and preserving individual autonomy. These rights, protected through a combination of statutory provisions and common law torts, are designed to prevent unauthorized intrusions into private lives and the misuse of personal data. In the digital age, understanding these rights and their implications is increasingly important.

INVASION OF PRIVACY TORTS

Ontario law recognizes several torts specifically addressing various forms of invasion of privacy. These torts provide remedies for individuals whose privacy has been violated in diverse ways.  

INTRUSION UPON SECLUSION

Fundamental Elements

Intrusion upon seclusion, established by the landmark case Jones v. Tsige, protects individuals from intentional and significant invasions of their private affairs. The essential elements include:

  • Intentional or Reckless Conduct: The defendant’s intrusion must be deliberate or recklessly executed.

  • Invasion of Private Affairs: The intrusion must involve the plaintiff’s private concerns or affairs.

  • Highly Offensive Conduct: The intrusion must be highly offensive to a reasonable person, causing distress, humiliation, or anguish.

Deliberate Intrusion

The intentionality requirement ensures that only deliberate or recklessly indifferent actions constitute intrusion upon seclusion. For instance, knowingly accessing someone’s private information without their consent clearly meets this criterion.

Absence of Lawful Justification

The lack of lawful justification is crucial. Actions performed with legal authority or consent do not meet the threshold for this tort, ensuring that legitimate actions remain protected.

Objective Invasiveness

The intrusion must be objectively invasive, meaning it would be considered highly offensive by a reasonable person. This standard filters out minor or insignificant invasions from being actionable.

Intrusion Upon Seclusion: Case Studies

The case of Jones v. Tsige remains a cornerstone in understanding this tort. The court emphasized that the defendant’s actions were not only intentional but also recklessly indifferent to the plaintiff’s privacy. This case set a precedent for how courts interpret deliberate intrusions into private affairs.

Subsequent Cases

Subsequent cases have further refined the scope of intrusion upon seclusion. Courts have considered various scenarios, from unauthorized access to digital records to invasive physical searches, highlighting the evolving nature of this tort in response to technological advancements.

PUBLIC DISCLOSURE OF EMBARASSING PRIVATE FACTS

Key Elements

This tort addresses the unauthorized public dissemination of private information that would be highly offensive to a reasonable person. The critical elements include:

  • Publicity: The defendant must have publicized the private information.

  • Private Facts: The information must be genuinely private and not of legitimate public concern.

  • Highly Offensive Disclosure: The disclosure must be highly offensive to a reasonable person.

Case Examples

Cases like Jane Doe 464533 v. D(N) underscore the importance of protecting intimate and sensitive information from being exposed without consent. These cases highlight the judicial recognition of the need to guard against such invasions.

Public Disclosure of Private Facts: Legal Developments

The tort of public disclosure of private facts has seen significant development in recent years. Courts have increasingly recognized the need to protect individuals from the public dissemination of their private information, particularly in the context of digital and social media.

Notable Rulings

Notable rulings have expanded the understanding of what constitutes private facts and how their unauthorized disclosure impacts individuals. Courts have awarded substantial damages in cases where the disclosure led to severe emotional distress and reputational harm.

PUBLICLY PLACING THE PLAINTIFF IN A FALSE LIGHT

Historical Context and Elements

The tort of false light involves giving publicity to a matter concerning another person that places them before the public in a misleading and highly offensive manner. Recognized in Yenovkian v. Gulian, its elements include:

  • Publicity: Public dissemination of information.

  • False Light: The information must present the plaintiff in a false light.

  • Highly Offensive: The false light must be highly offensive to a reasonable person.

  • Knowledge or Recklessness: The defendant must have known the falsity or acted recklessly regarding it.

Application in Modern Context

This tort is particularly relevant in cases involving media and online platforms where false representations can significantly harm an individual’s reputation and emotional well-being.

False Light and Misleading Publicity: Expanding Protections

The recognition of the tort of false light in Yenovkian v. Gulian marked a significant expansion in privacy protections. This tort addresses the harm caused by misleading representations that place individuals in a false light, underscoring the importance of truth and accuracy in public portrayals.

Practical Implications

Practically, this tort has significant implications for media outlets, advertisers, and individuals who publish content about others. The requirement for accuracy and the potential for substantial damages act as a deterrent against misleading representations.

APPROPRIATION OF NAME OR LIKENESS

Essential Elements

The tort of appropriation protects individuals from unauthorized commercial use of their identity. Key elements include:

  • Identifiability: The plaintiff must be identifiable from the use.

  • Commercial Exploitation: The use must be for a commercial purpose.

  • Lack of Consent: The plaintiff must not have consented to the use.

Legal Precedents

Legal precedents like Krouse v. Chrysler Canada Ltd. illustrate the court’s approach to protecting personal identity from commercial exploitation without consent, emphasizing the right to control one’s own image and likeness.

Appropriation of Identity: Legal Boundaries

The tort of appropriation of name or likeness focuses on protecting individuals from unauthorized commercial exploitation. Legal boundaries have been established through case law, ensuring that individuals retain control over their identity and its use.

Commercial Exploitation Cases

Cases involving celebrities and public figures have been pivotal in defining this tort. Courts had consistently ruled in favour of plaintiffs when their identity was used without consent for commercial purposes, emphasizing the right to control one’s image.

JURISDICTIONAL NUANCES IN PRIVACY LITIGATION

Privacy litigation often involves complex jurisdictional issues, especially when dealing with extraterritorial remedies and anonymous defendants. Ontario courts exercise jurisdiction over privacy torts committed within the province, but cross-border cases require careful consideration.

Extraterritorial Remedies

Ontario courts can assert jurisdiction over foreign defendants if a real and substantial connection to the province exists. This principle enables plaintiffs to seek redress even when the defendant operates outside Ontario.

Addressing Anonymous Defendants

In cases involving anonymous defendants, plaintiffs can seek court orders to compel third parties, such as internet service providers, to disclose the defendant’s identity. This ensures that legal action can proceed even when the violator’s identity is initially unknown.

THE ROLE OF PIPEDA IN PRIVACY PROTECTION

The Personal Information Protection and Electronic Documents Act (PIPEDA) is a pivotal federal statute governing the collection, use, and disclosure of personal information in commercial activities. PIPEDA aims to balance individual privacy rights with organizational needs to collect and use personal data for legitimate purposes.

Consent and Accountability

Organizations must obtain informed consent for collecting, using, or disclosing personal information. They are also accountable for the personal data they manage, ensuring compliance with PIPEDA’s principles.

Limiting Collection and Use

PIPEDA mandates that organizations limit the collection of personal information to what is necessary for the specified purposes. This principle prevents excessive data collection and ensures relevance.

Data Accuracy and Security

Organizations must maintain the accuracy of personal information and implement robust security measures to protect against data breaches and unauthorized access.

Transparency and Individual Access

PIPEDA requires organizations to be transparent about their data handling practices and provide individuals with access to their personal information upon request. This promotes trust and accountability.

Enforcement and Judicial Remedies

The Office of the Privacy Commissioner of Canada plays a crucial role in enforcing PIPEDA. Individuals can lodge complaints, prompting investigations and potential recommendations for change. In cases of non-compliance, individuals can seek judicial remedies, including damages, through the Federal Court of Canada.

PIPEDA BEST PRACTICES

Implementing Privacy Policies

Organizations must implement comprehensive privacy policies that comply with PIPEDA’s requirements. These policies should outline how personal information is collected, used, and protected.

Best Practices for Compliance

Best practices for compliance include conducting regular privacy audits, training employees on data protection, and establishing clear protocols for handling personal information. These measures ensure that organizations adhere to PIPEDA’s standards and protect individual privacy.

Responding to Data Breaches

In the event of a data breach, organizations must respond swiftly to mitigate harm and comply with PIPEDA’s breach notification requirements. This involves notifying affected individuals and the Privacy Commissioner, and taking steps to prevent future breaches.

Crisis Management Strategies

Effective crisis management strategies include having a response plan in place, conducting thorough investigations, and communicating transparently with affected parties. These steps help to rebuild trust and demonstrate a commitment to privacy protection.

Enhancing Transparency and Accountability

Transparency and accountability are key principles of PIPEDA. Organizations must be open about their data handling practices and provide individuals with access to their personal information upon request.

Building Trust with Stakeholders

Building trust with stakeholders involves being proactive in privacy protection, addressing concerns promptly, and demonstrating a commitment to ethical data practices. This not only ensures compliance but also fosters a positive reputation.

CONCLUSION: CHOOSE GRIGRAS LAW FOR YOUR PRIVACY LAW CASE

Navigating the complexities of privacy law is essential for protecting your personal information and maintaining your rights. Whether you are dealing with issues related to invasion of privacy, unauthorized data use, or privacy breaches, having the right legal representation is crucial. For individuals and businesses in Toronto and throughout Ontario, Grigoras Law is the premier choice for handling privacy law cases.

Why Choose Grigoras Law for Your Privacy Law Case?

Expertise in Privacy Law: Our legal team, led by experienced lawyers Denis Grigoras and Rachelle Wabischewich, brings extensive knowledge and experience to every privacy law case. Privacy law is a specialized area that requires in-depth understanding of both statutory and common law protections. We navigate its intricacies with precision, providing comprehensive legal guidance and effective advocacy across Ontario.

Client-Centric Approach: At Grigoras Law, your needs and well-being come first. We offer personalized legal solutions tailored to your unique situation, ensuring peace of mind and steadfast support throughout your legal journey. Our approach is centred on you; we listen, understand your concerns, and develop strategies that best suit your specific needs. Your peace of mind and satisfaction are our foremost priorities.

Proven Track Record: Our history of successful outcomes speaks to our ability to effectively represent clients in privacy law cases. We have consistently helped clients protect their personal information and rights. Our reputation as privacy law advocates in Toronto is built on a solid foundation of successful cases. We consistently achieve favourable outcomes for our clients, demonstrating our commitment to excellence.

Holistic Legal Understanding: We integrate privacy law with other relevant areas, allowing us to approach cases from a comprehensive perspective. Privacy issues often overlap with other legal areas, such as data protection and commercial litigation, which Grigoras Law is adept at handling. Our multifaceted expertise ensures no stone is left unturned, whether you are asserting your rights or defending against allegations. Our team possesses in-depth knowledge across various areas of law, enabling us to provide holistic and nuanced legal support.

Convenient and Accessible: Based in the heart of Toronto, Grigoras Law is your local legal partner, easily accessible to clients throughout the GTA and Ontario. We are dedicated to providing expert legal support right when you need it most. Our central location ensures that you can easily reach us, and we are committed to serving clients from all corners of Ontario with the same level of dedication and expertise.

A Team You Can Trust: Our exceptional legal team, led by Denis Grigoras and Rachelle Wabischewich, is committed to your success. We pay close attention to every detail, respond promptly to your needs, and work tirelessly to find unique and effective solutions. With us, you’re not just getting legal support; you’re gaining partners who genuinely care about your situation. Our team is known for its dedication, professionalism, and unwavering commitment to our clients’ well-being.

Tailored Legal Strategies: At Grigoras Law, we understand that every privacy law case is unique. We take the time to understand the specifics of your situation and tailor our legal strategies accordingly. Whether you are dealing with data breaches, unauthorized use of personal information, or complex privacy torts, we develop a customized approach to achieve the best possible outcome for you.

Comprehensive Support: We provide comprehensive support for all aspects of your privacy law case. From gathering evidence and building a strong case to representing you in court, we are with you every step of the way. Our thorough and strategic approach ensures that all bases are covered, giving you the confidence that your case is in capable hands.

Protecting Your Privacy Rights: In today’s digital world, protecting your privacy rights is vital. We understand the importance of safeguarding your personal information and take a proactive approach to protect it. Our team works diligently to address any privacy issues promptly and effectively, minimizing the impact on your life and future.

Navigating Complex Legal Challenges: Privacy law cases can be complex, often involving multiple legal issues. Our team’s holistic understanding of the law allows us to navigate these challenges with ease. We are adept at handling cases where privacy intersects with other legal areas, ensuring that no detail is overlooked.

Take Control of Your Legal Situation

Protecting your privacy rights is crucial in today’s world. When facing privacy issues, seek the guidance of Grigoras Law, your trusted ally in privacy law. We are here to represent you, ensuring you have the advocacy and expertise needed to navigate your legal challenges. Take control of your legal situation with confidence, knowing that you have a dedicated and skilled legal team by your side.

Contact Grigoras Law Today

If you believe your privacy rights have been violated or if you are facing allegations related to privacy law, don’t hesitate to reach out to our qualified Toronto privacy law lawyers. We proudly represent clients across Ontario. Our team is dedicated to offering bespoke solutions, attentively crafted to suit your distinct needs. Choose Grigoras Law for a dedicated and skilled legal team ready to stand by your side every step of the way. We prioritize delivering a high standard of professional service, ensuring every aspect of your case receives focused and expert attention.

At Grigoras Law, we understand the profound impact that privacy violations can have on your life and reputation. Our commitment to excellence, client-centric approach, and proven success make us the ideal partner for your privacy law case. Trust us to protect your privacy rights and provide the robust legal support you need.

F.A.Q.

Disclaimer: The answers provided in this FAQ section are general in nature and should not be relied upon as formal legal advice. Each individual case is unique, and a separate analysis is required to address specific context and fact situations. For comprehensive guidance tailored to your situation, we welcome you to contact our expert team.

Based on Canadian law and legal precedents, specifically cases Jane Doe 464533 v. D. (N.) (“Jane Doe 2016) and Jane Doe 72511 v. N.M. (“Jane Doe 2018”), it is highly possible for you to sue someone who recorded a sexually explicit video of you without your consent, especially if it was then distributed on a large scale (such as on the internet). This could be a violation of your privacy rights, and it can potentially qualify as the tort of “Public Disclosure of Private Facts.”

According to the Restatement (Second) of Torts (2010) at 652D, this tort is defined as:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

The key to this tort is the concept of publicity, meaning that the violation has been communicated on a large scale, such as through media to the public at large, rather than just to a small number of individuals.

According to the judgments in both Jane Doe 2016 and Jane Doe 2018 cases, the courts recognized this tort and found the defendants liable for the non-consensual recording and public distribution of intimate, sexually explicit videos. The judges emphasized that what is offensive is not the recording of sexual acts per se, but the non-consensual publication or sharing of such recordings, especially if the person in the video did not want to share it with others.

To establish liability for this tort, a plaintiff must prove the following:

  1. The defendant publicized an aspect of the plaintiff’s private life;
  2. The plaintiff did not consent to the publication;
  3. The matter publicized or its publication would be highly offensive to a reasonable person; and
  4. The publication was not of legitimate concern to the public.

In both Jane Doe 2016 and Jane Doe 2018, the courts awarded the plaintiffs substantial damages: $50,000 for general damages, $25,000 for aggravated damages, and $25,000 in punitive damages.

It’s important to consult with a legal professional who can assess your situation based on the specifics of your case. However, given the recent precedents in Canadian law, it seems that you may have a strong case for suing someone who recorded and distributed a sexually explicit video of you without your consent.

While it can be unsettling to learn that you have been secretly recorded by your employer, the legality of this act depends on a number of factors, including jurisdiction, the employer’s intent, and the reason for the recording.

Under certain circumstances, it may be legally permissible for an employer to secretly record an employee, particularly if there is a reasonable suspicion of misconduct. This is especially the case in civil proceedings where the results of such surveillance can be considered relevant and admissible evidence unless there’s an application of another rule of evidence that excludes it. In other words, if an employer has a good reason to believe that an employee is engaged in prohibited conduct, such as sleeping on the job, video surveillance may be seen as justified.

The case of Richardson v. Davis Wire Industries Ltd. provides an important precedent in this context. In this wrongful dismissal action, the employer had received reports that an employee was sleeping at work and used surreptitious video surveillance to investigate these allegations. At trial, the plaintiff’s lawyer sought to bar the admission of the videotape, citing an invasion of privacy. The court, however, rejected the privacy argument, ruling that the video was admissible as evidence. This case indicates that even covertly obtained video surveillance can be considered evidence, depending on the circumstances.

That being said, it’s important to note that in the Richardson case, the judge expressed regret about the employer’s choice to secretly videotape the employee rather than confronting him directly. This suggests that while such secret recordings might sometimes be legally permissible, they may not always be seen as the best or most ethical approach to addressing workplace issues.

However, the circumstances of each case can differ significantly, and laws can also vary by jurisdiction. Therefore, this information should not be considered definitive legal advice, but rather a general understanding of how such situations can potentially be handled in a legal context. If you find yourself in such a situation, it would be beneficial to consult with a qualified lawyer who can provide advice based on the specific facts of your case and your local jurisdiction’s laws.

Under Canadian law, the simple answer to whether a prospective employer is allowed to Google you is “Yes.” This includes Google searching, viewing your Facebook or Twitter feed, or any other form of online search about potential candidates. This is the modern equivalent of the longstanding accepted practice of asking a job candidate for letters of reference. In essence, employers are generally free to learn as much about a candidate as possible.

However, it’s important to note that there are privacy-related considerations that may limit these kinds of inquiries. For instance, using British Columbia as an example, the collection, use, and disclosure of personal information retrieved from social media about a job candidate is subject to the province’s privacy legislation. This includes the Freedom of Information and Protection of Privacy Act for public bodies, and the Personal Information Protection Act for private employers. Under these types of provincial legislation, employers are only entitled to collect information that a reasonable person would consider appropriate in the circumstances, and they must ensure it is accurate.

While there is no legal obligation for the employer to advise the candidate of how a search might be conducted, or how the results were used, shared, or interpreted upon hiring, there are significant privacy-specific constraints that employers need to heed.

Prospective employers can legally review publicly available information about you on the internet, including your social media profiles (Facebook, Twitter, Instagram, Snapchat, etc.), photos, written material, and other media, personal websites, including blogs and visual media. This information can provide a detailed glimpse into a candidate’s non-work life and may influence hiring decisions. However, employers should keep in mind that this information, while publicly available, tends to be personal or semi-private and may not necessarily be geared toward demonstrating job suitability.

Employers may glean certain characteristics about a candidate from their social media profiles, such as their community participation, creativity, good judgment, compassion towards public-interest, and social justice issues, to name a few. Conversely, employers may also find reasons not to hire a candidate based on their social media content, such as inappropriate photos, negative comments about previous employers, illegal drug use or excessive drinking, discriminatory language or affiliations, and others. As long as these considerations are not influenced by factors that form prohibited grounds of discrimination, an employer is entitled to consider them when making a hiring decision.

However, employers should not demand access to a job candidate’s social media accounts as part of the interview process. The Ontario Human Rights Commission has issued a statement warning employers that asking candidates for social media passwords may contravene the Human Rights Code provisions that prohibit discrimination arising from a written or oral form of employment application or inquiry. Furthermore, Facebook’s Terms of Service expressly prohibit users from sharing their passwords or accessing someone else’s account.

In conclusion, while prospective employers are allowed to conduct independent online searches for information about potential candidates, they must ensure that these searches abide by the legal requirements and respect the privacy of the candidates. They should also be careful not to use any information found on social media to discriminate against a candidate based on the prohibited grounds outlined in human rights legislation.

Yes, Canada has laws that can protect your child against cyberbullying and potentially help prosecute individuals responsible for this behaviour. These laws encompass privacy torts, defamation, and specific anti-cyberbullying and “revenge porn” regulations.

1. Privacy Laws and Torts

Several Canadian provinces have legislation or case law that explicitly recognizes the existence of a tort of violation of privacy. This includes Ontario, British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador, each of which have Privacy Acts stating that it’s a tort to willfully violate another’s privacy without a claim of right. This can include eavesdropping or surveillance, which could apply to cyberbullying in certain contexts.

The notion of “public interest” often guides these cases, helping courts strike a balance between privacy rights and freedom of expression. In instances of conflict, public interest may enable courts to assess whether the public has a genuine stake in the disclosed private information.

2. Defamation

Defamation can be another avenue to address cyberbullying, especially when false injurious statements are made online. Even if the harmful information published is true, the Ontario Privacy Commissioner (OPC) has raised concerns about these laws’ limitations as a tool to address reputational harm. For example, in common law jurisdictions, recovery for defamation is barred if the statements are true, regardless of their potential to cause embarrassment or the level of malice intended.

In Quebec, the legal framework is a little different. The information revealed to the public must not only be true or accurate; it must also be necessary to convey the content in which the public has a “legitimate interest.” This additional layer of protection further enhances the safeguarding of individuals’ reputations.

3. Anti-Cyberbullying and “Revenge Porn” Laws

Canadian laws have evolved to address the increasing prevalence of cyberbullying and “revenge porn.” Both Parliament and provincial legislatures have enacted measures to address these issues, and courts have recognized the existence of new common law torts.

One landmark case in this area is B. (A.) v. Bragg Communications Inc., in which the Supreme Court of Canada acknowledged the importance of protecting young people’s privacy rights due to the extensive, direct, and harmful consequences of cyberbullying.

The Protecting Canadians from Online Crime Act, in force since 2014, amended the Criminal Code to introduce a new offence of non-consensual distribution of intimate images, along with complementary amendments that allow for the removal of such images from the Internet.

Several provinces have also enacted specific laws against “revenge porn” and cyberbullying, including Manitoba, Nova Scotia, Newfoundland, and Alberta. Additionally, courts have recognized the existence of other privacy-related common law torts in the context of “revenge porn.”  You can read our Blog Post on the topic.

Search engines like Google, Microsoft, and Yahoo have also taken action against revenge porn by allowing victims to have it removed from search results associated with their names.

In summary, while there’s no specific “cyberbullying” law in Canada, various elements of the Canadian legal system can be used to protect individuals, including minors, from online harassment, defamation, and violation of privacy. The nature of the case, evidence available, and jurisdiction involved would determine which laws are most relevant. Always consult with a legal professional for specific guidance related to your situation.

Experience, attentive representation.

Talk to a Privacy Lawyer

Whether you are dealing with a privacy violation or defending against allegations, Grigoras Law is here to help. Our legal team provides comprehensive solutions tailored to both plaintiffs and defendants. Trust us to safeguard your privacy rights and navigate the complexities of privacy law. Contact us today to discover how we can support you.

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