Privacy Law

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.

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.

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.

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.

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. 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.

Prospective employers can legally review publicly available information about you on the internet, including your social media profiles, 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.

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. 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.

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.

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. 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."

3. Anti-Cyberbullying and "Revenge Porn" Laws

Canadian laws have evolved to address the increasing prevalence of cyberbullying and "revenge porn." 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. 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. You can read our Blog Post on the topic.

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. Always consult with a legal professional for specific guidance related to your situation.

Often, no. Consent is typically limited to the specific purpose disclosed at the time of collection. If, for example, you agreed to let a company store your data for membership verification, that does not necessarily allow them to sell or share it for targeted advertising. Courts and Privacy Commissioners examine the scope of consent carefully. If usage deviates from what you agreed to, you may have grounds for a privacy complaint or lawsuit.

Yes, organizations in Ontario can be held liable for privacy breaches committed by their employees under certain circumstances. This liability is typically addressed through the doctrine of vicarious liability, where an employer is held responsible for the actions of its employees if those actions occur in the course of their employment.

For an organization to be vicariously liable for a privacy breach, the following conditions generally need to be met:

1. Employee-Employer Relationship: There must be a clear employee-employer relationship. This includes situations where the employee was acting within the scope of their employment when the breach occurred.
2. Connection to Employment: The privacy breach must be sufficiently connected to the employee's duties or tasks as assigned by the employer. This means the employee's actions were related to their job responsibilities, even if those actions were unauthorized or contrary to the employer's instructions.
3. Reasonable Foreseeability: It must be reasonably foreseeable that the employee's actions could result in a privacy breach. If an organization fails to implement adequate safeguards or oversight, it may increase its risk of liability.

Organizations can mitigate potential liability by implementing strong privacy policies, training employees on data protection practices, and establishing procedures for monitoring and auditing access to personal information. If a breach occurs, promptly addressing the issue and taking corrective measures can also influence the extent of liability.

If an individual believes their privacy was breached by an organization's employee, they should document the incident and consult with legal counsel to explore potential claims against the organization for intrusion upon seclusion or any other applicable legal remedies.

Generally, privacy torts are designed to protect individual interests—like personal autonomy or emotional well-being—rather than corporate identity. However, businesses sometimes pursue related claims under trademark, passing off, or breach of confidence if their brand or proprietary information is misused. In rare scenarios, a corporate representative's personal likeness might be at stake, and if so, a combined approach using privacy torts and business torts may be warranted.

Ontario courts often evaluate if the disclosed information contributes meaningfully to public understanding of a significant issue—like political corruption or public health crises. If so, news outlets might invoke the public interest defence, arguing they only revealed essential personal details and avoided sensational or irrelevant material. The threshold involves balancing the article's societal importance against the intrusion's severity. Sensational or prurient revelations with negligible public value usually fail under this defence.

Defamation generally requires a false statement harming someone's reputation. False light can involve inaccuracies or omissions that misrepresent a person's private life, causing distress or humiliation, even if it does not directly harm their standing in the community. A defamation claim focuses on reputational damage, whereas false light zeroes in on the personal affront of being portrayed in a misleading manner—even if the statements do not strictly slander or libel the plaintiff.

If the defendant disregards a court order to remove private material or stop disclosure, they risk being found in contempt of court. This can result in fines or imprisonment. Plaintiffs can return to court to report ongoing violations, potentially receiving further remedial orders. In an online context, plaintiffs may also seek assistance from platforms, hosting services, or domain registrars to remove content or block certain webpages, leveraging the court's injunctive authority.