Wednesday, March 21, 2012

Media Wary as Canadian Court Recognizes Invasion of Privacy Tort

Distributing copies of the Canadian Charter of...
Distributing copies of the Canadian Charter of Rights and Freedoms. (Photo credit: Wikipedia)
In a unanimous opinion written by Justice Robert Sharpe, the Ontario Court of Appeal in Jones v. Tsige (2012 ONCA 32) has recognized "intrusion upon seclusion," a rhyming adoption of common law invasion of privacy.

As reported by Canada's The Lawyers Weekly,  the appellate court ruled that to prevail on an intrusion upon seclusion claim, the plaintiff must prove the defendant:

  • engaged in reckless or intentional conduct;
  • invaded plaintiff's private affairs or concerns without lawful justification; and
  • a reasonable person would consider the invasion highly offensive and causing distress, humiliation or anguish.

The Jones case involved two unacquainted bank employees, one of whom was romantically involved with the plaintiff's former spouse. The defendant accessed the plaintiff's personal banking records roughly 174 times over a four-year stretch, counter to bank policy, according to the Lawyers Journal article.

The trial court initially tossed plaintiff's case, citing Ontario law not recognizing invasion of privacy as an actionable tort. In reversing that ruling and awarding the plaintiff $10,000 damages, the appellate court noted that four Canadian provinces had statutorily recognized the tort, and suggested a body of common law invasion of privacy claims should develop consistent with the Charter of  Rights and Freedoms.

Publication of private information and economic harm are not prerequisites of a successful invasion of privacy action, the Court noted, as the emphasis is on intrusion into delicate areas such as sexual proclivities, medical records, financial information and private correspondence.  The Canadian news media is expected to be a ripe target for future claims, though the Court hinted a defense of reporting on matters of public concern may defeat an intrusion upon seclusion count.
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