Privacy Torts
Welcome to Grigoras Law. We are dedicated to defending your privacy rights in a digital world, providing robust representation for clients entangled in privacy tort cases.
Privacy Torts
Privacy torts are legal actions predicated on the invasion of one’s personal privacy rights by another. This can encompass a range of situations, from unauthorized use of a person’s name or likeness to unwarranted intrusion into someone’s personal life. We offer counsel and representation across four main categories of privacy torts:
Appropriation of Personality
This privacy tort involves the unauthorized use of an individual’s personality attributes, such as their name or likeness, for commercial gain without their consent. We advocate for individuals whose personalities have been misused, helping them to assert their rights to control how their persona is utilized commercially. Conversely, we also represent defendants accused of such actions, helping them articulate their defences, such as consent or public interest.
The essence of a claim for Appropriation of Personality lies in (a) use of another’s personality, (b) without consent, and (c) for commercial gain. Our expertise will guide you through this intricate process, ensuring that each of these elements is accurately represented in your case.
Intrusion upon Seclusion
Intrusion upon Seclusion pertains to cases where a defendant, without lawful justification, intentionally or recklessly invades the plaintiff’s private affairs or concerns. This invasion, under the standard of a reasonable person, would be regarded as highly offensive, causing distress, humiliation, or anguish.
Our role is to help the plaintiff establish these three elements in a claim. Equally, for defendants, we aid in crafting robust defences, keeping in mind that proof of harm to a recognized economic interest is not an element of the cause of action. We diligently help clients navigate these complexities, ensuring they understand the full scope and potential impacts of their case.
Public Disclosure of Private Facts
This tort involves the unauthorized dissemination of private aspects of a person’s life. A plaintiff must prove that the defendant publicized an aspect of the plaintiff’s private life without consent, the matter publicized is highly offensive to a reasonable person, and it is not of legitimate public concern. We guide clients through these elements, providing support when dealing with the distress and potential harm that may follow such public disclosure.
Publicity Placing the Plaintiff in a False Light
This tort involves publicity that wrongfully places the plaintiff in a false light before the public. This could range from false attributions to using an individual’s image to illustrate something they have no connection with. In defending clients against such allegations, we ensure that their reputation and right to control it are adequately protected.
At Grigoras Law, we understand that these privacy torts can involve deeply personal and distressing issues. We handle each case with the utmost sensitivity and confidentiality, always ensuring that our clients’ interests are at the forefront of our practice.
Whether you believe your privacy rights have been violated, or if you are defending against such allegations, Grigoras Law is prepared to provide you with the experienced, attentive representation you need.
FAQ
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:
- The defendant publicized an aspect of the plaintiff’s private life;
- The plaintiff did not consent to the publication;
- The matter publicized or its publication would be highly offensive to a reasonable person; and
- 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.
The scenario you described with banana bread advertisements appearing after searching for a dairy-free banana bread recipe is a perfect example of “targeted advertising,” a common practice that advertisers use to tailor their ads specifically to a user’s interests.
To understand what’s happening, we first need to discuss what targeted advertising is and how it works. In simplest terms, targeted advertising is a practice in which advertisements are served to you, the user, based on your behavior, interests, and other identifiable patterns. This can be done in several ways, the most prominent being Online Behavioural Advertising (OBA).
OBA involves tracking consumers’ online activities over time and across various websites to deliver advertisements that align with the users’ inferred interests. This tracking involves algorithms that analyze collected data, build detailed personal profiles, and assign users to various interest categories. For instance, if you often search for recipes and baking ingredients, you might be assigned to a “cooking enthusiast” or “home baker” category, and hence you would see more ads related to those categories.
This tracking is usually accomplished through the use of technologies like cookies, web beacons, supercookies, zombie cookies, and device fingerprinting.
A cookie is a small piece of data stored by a website on your device when you visit that website. Cookies are used to track and store information about your visit, such as the pages you viewed, your language preference, or the advertisements you viewed and clicked on.
Some cookies are placed by the website you visit (first-party cookies) and others are placed by third parties, like advertising networks (third-party cookies). The latter kind of cookie is especially crucial for OBA as it can track your browsing habits across multiple websites, not just the one you’re currently visiting.
In the example you mentioned, when you googled a dairy-free banana bread recipe, a cookie could have been placed on your browser that tracked this search. This information was likely used by an advertising network to categorize you as someone interested in baking or specific recipes. As a result, you started seeing more ads related to banana bread as you scroll through your Facebook feed.
It’s also worth noting that some forms of targeted advertising don’t create a detailed profile about you but base their ads on your recent activities. This practice, known as retargeting or remarketing, doesn’t require detailed profiling but rather focuses on your recent internet activity, such as that Google search for a dairy-free banana bread recipe.
Also, other forms of advertising, like micro-targeting, collect data on a cross-channel and cross-device basis (e.g., your laptop, smartphone, smart TV, tablet) for highly precise ad targeting. This can include demographic, behavioural, and geographic data, creating highly specific advertising profiles.
Targeted advertising can feel invasive, but it is a widespread practice intended to deliver more relevant ads to consumers. In many cases, it is done in compliance with privacy laws, though there is ongoing debate about its ethical implications and the need for stricter regulations.
Overall, it is important to understand that much of your online activity is likely being tracked and used to serve you personalized advertisements. If you’re uncomfortable with this, you might want to explore options for limiting ad tracking or deleting cookies in your web browser settings. Many websites and online platforms also offer options to opt-out of targeted advertising, though these options can sometimes be difficult to find or understand.
The concept of a “Breach of Confidence” or “Breach of Confidentiality” is a legal doctrine that pertains to the unlawful use or revelation of confidential or private information. This principle is not a new concept; it existed long before the digital era. However, in recent times, it has gained significant importance in civil litigation concerning digital privacy violations.
The tort of breach of confidence consists of three core elements:
The information at the heart of the dispute must have the necessary quality of confidence about it. This implies that the data is not something that’s already publicly available or trivial. The data must possess a certain degree of sensitivity, importance, or exclusivity.
The information must have been imparted in circumstances implying an obligation of confidence. This condition suggests that the data was shared in a relationship or situation where there’s an implicit or explicit expectation of confidentiality or secrecy, such as attorney-client relationships, doctor-patient relationships, or within employment.
There must be unauthorized use of that information, resulting in detriment to the party who disclosed it. Unauthorized use could mean utilizing the information for purposes other than intended or sharing the data without permission. The harm inflicted upon the disclosing party could be economical, emotional, or physical.
The tort of breach of confidence often surfaces in employment law, such as instances where employees departing from an organization might misuse corporate information obtained during their tenure. Also, it can arise in corporate dealings where one party uses the shared information beyond the agreed terms.
Interestingly, the digital age has seen the principle of breach of confidence being applied in novel contexts. For instance, in the case of Jane Doe 464533 v. D. (N.), the court found a breach of confidence where a plaintiff shared a personal video with the defendant on the assurance that it would remain private, only for the video to be posted online. This case broadened the understanding of “detriment” to include not just economic harm, but also psychological, emotional, and physical harm.
This broad perspective of “detriment” extends the applicability of the breach of confidence tort to various digital privacy violations, especially those related to the unwarranted sharing of private images and data. This broad interpretation means the potential damages awarded for a breach of confidence do not have a set range or cap, unlike the intrusion upon seclusion tort. This has made the breach of confidence tort often used alongside the intrusion upon seclusion tort, especially in class proceedings.
Yes, your personal health information is protected by privacy law, but it’s important to note that these protections are not unlimited.
At the heart of this protection is the concept of confidentiality, which refers to the duty a healthcare provider has to keep their patient’s information private. This duty is a means by which the right to privacy of health information is safeguarded. It’s essential to note that this duty of confidentiality and your right to privacy is distinct from the legal construct of privilege, which involves protections against certain types of information being used as evidence.
The sharing of personal health information within a healthcare system is a complex issue. While healthcare professionals require access to your health information to provide care, there is also a need to protect the privacy of that information. The general principle is that everyone within your “circle of care” (doctors, nurses, pharmacists, physiotherapists, clinical clerks, medical students, and others) may access your health information via implied consent. This means that by seeking care, you are implicitly giving permission for your information to be shared among the professionals involved in your treatment. However, explicit consent is usually required for the disclosure of your health information to your family, friends, or other third parties.
When it comes to community-based health services, the issue of confidentiality can become more complex, as multiple agencies might be involved in providing care. Without explicit permission from the patient, the sharing of information between these agencies could be considered a breach of confidentiality.
Health information can also be used for teaching, quality improvement, and research purposes. In research, patients typically have to sign an informed consent form (ICF) to participate. Laws such as the Ontario Personal Health Information Protection Act, 2004 (PHIPA) dictate how health information custodians (HIC) can use personal health information (PHI) for these and other purposes.
Technological tools such as Electronic Health Records (EHRs) have become increasingly sophisticated, often allowing patients to access their own EHRs and potentially restrict access to certain individuals or healthcare providers. Security measures are critical to protecting sensitive data and ensuring that only authorized individuals have access to this information.
Organizations have a responsibility to establish strict guidelines, policies, and standard operating procedures regarding who can and cannot see health information. The principle of limiting access to sensitive health data to those who require it for legitimate purposes is central to these practices.
However, breaches of confidentiality can still occur, for example, through casual conversations where confidential client information is overheard, or through deceptive practices aimed at illicitly obtaining personal information. Organizations should therefore invest in training and awareness programs for their staff about the dos and don’ts of confidentiality and privacy, emphasizing the implications of unauthorized disclosure of health information to third parties.
Moreover, while your health information is indeed protected by privacy laws, it is also a valuable commodity, especially in the digital age. It’s essential to note that industries have evolved to safeguard Electronic Health Records (EHRs) from threats such as hacks, theft, and blackmail.
To sum up, privacy laws do provide protection for your personal health information. However, this is a complex issue involving a delicate balance between sharing information for the purpose of providing care and protecting patient privacy. It also involves stringent practices to prevent unauthorized access or disclosure and the use of advanced technology to ensure secure storage and handling of sensitive data.
