The Ontario Court of Appeal formally recognized today the existence of a tort for an intrusion upon seclusion. In the widely watched case of Jones v Tsige 2012 ONCA 32, the Court reviewed the prior case law from around the country, the US and the Commonwealth. After doing so, it concluded that Ontario has already accepted the existence of a tort claim for appropriation of personality and that it was appropriate for the Court to confirm the existence of a right of action for intrusion upon seclusion. “Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”
The Court gave lucid and compelling reasons for recognizing the cause action. According to the Court:
The case law, while certainly far from conclusive, supports the existence of such a cause of action. Privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy. Charter jurisprudence recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of protection, a right to informational privacy that is distinct from personal and territorial privacy. The right to informational privacy closely tracks the same interest that would be protected by a cause of action for intrusion upon seclusion. Many legal scholars and writers who have considered the issue support recognition of a right of action for breach of privacy: see e.g. P. Winfield, “Privacy” (1931), 47 L.Q.R. 23; D. Gibson, “Common Law Protection of Privacy: What to do Until the Legislators Arrive” in Lewis Klar (ed.), Studies in Canadian Tort Law (Toronto: Butterworths, 1977) 343; Robyn M. Ryan Bell, “Tort of Invasion of Privacy – Has its Time Finally Come?” in Todd Archibald & Michael Cochrane, Annual Review of Civil Litigation (Toronto: Thomson Carswell, 2005) 225; Peter Burns, “The Law and Privacy: the Canadian Experience” (1976), 54 Can. Bar Rev. 1; John D.R. Craig, “Invasion of Privacy and Charter Values: The Common Law Tort Awakens” (1997), 52 McGill L.J. 355.
For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”: “The Law and Privacy: the Canadian Experience” at p. 1. See also Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.
It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.
Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.
The Court accepted that the essential elements of the tort of intrusion upon seclusion were as described the Restatement (Second) of Torts (2010):
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
According to the Court, the key features of the cause of action are:
- first, that the defendant’s conduct must be intentional, which would include reckless;
- second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
- third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
However, proof of harm to a recognized economic interest is not an element of the cause of action.
The Court stressed the limitations of the cause of action as follows:
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada’s elaboration of the common law of defamation in Grant v. Torstar where the court held, at para. 65, that “[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”
The Court noted that in the US the general right to privacy embraces four distinct torts. These are: intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; public disclosure of embarrassing private facts about the plaintiff; publicity which places the plaintiff in a false light in the public eye; and appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. It also noted that each of these torts has its own considerations and rules, and that confusion may result from a failure to maintain appropriate analytic distinctions between the categories. Accordingly, while the Court did not rule out the possibility that all of the other torts existed, it limited it reasons only to the tort of intrusion upon seclusion.