The interplay between BC’s statutory tort of privacy and the tort of defamation

Defamation law and breach of privacy law are separate and distinct, but the two torts are occasionally brought before the courts in the same matter. An attack on an individual’s reputation can be done in a manner that also contravenes privacy rights.  That said, the courts have little patience for litigants who confuse the two issues or who plead both causes of action when only one is appropriate. Accordingly, understanding the differences between these torts and the legal principles that inform them is paramount when dealing with an action in this area of the law.

For a successful defamation claim, a plaintiff has to establish three elements: that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; that the words referred to the plaintiff; and that the words were published.[i]  This is a relatively low threshold and most defamation actions are decided on whether the defendant can make out one or more of the well-developed defences to a defamation action, such as truth, qualified privilege, fair comments or responsible communications. (For a discussion about defences to a defamation claim, please see the blog post entitled “What they wish they knew before publishing”).

In comparison to the law on defamation, the law on privacy in Canada is in its infancy.[ii] There is currently no common law tort of invasion or breach of privacy in British Columbia.[iii] Instead, we have a statutory tort of privacy through the Privacy Act, R.S.B.C. 1996, c. 373 (the “Act”). Section 1 of the Act provides:

1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

The nature and degree of privacy to which a person is entitled is that which is reasonable in the circumstances and a court must consider the alleged breach of privacy contextually. Importantly, the scope of this right to privacy is fluid. As put by Justice Sharpe of the Ontario Court of Appeal, certain provincial legislatures, including BC’s, have “proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right”.[iv] This leaves significant room for argument by parties bringing and defending these claims.

Manitoba, Saskatchewan, and Newfoundland have all enacted similar legislation that creates a statutory tort of privacy.[v] Under Quebec law, the right to privacy is protected under the Civil Code of Quebec and by Quebec’s Charter of Human Rights and Freedoms.[vi]

While Ontario lacks equivalent legislation to BC’s, the Court of Appeal confirmed the existence of a common law tort of intrusion upon seclusion in Ontario in Jones v. Tsige, 2012 ONCA 32. The Court highlighted that allowing a cause of action for an invasion of privacy is particularly important with how significantly technology has impacted the ability to protect one’s personal information.[vii]

Causes of action involving BC’s tort of privacy are often brought under section 1(4) of the Act, which specifically addresses eavesdropping and surveillance.

For example, in Wasserman v. Hall, 2009 BCSC 1318 the defendant was awarded damages against the plaintiff, his neighbour, who installed surveillance cameras that overlooked the defendant’s yard in connection with their heated residential fence dispute.[viii] In Watts v. Klaemt, 2007 BCSC 662 the plaintiff was awarded $30,000 in damages after the  defendant had monitored and recorded her phone line for over a year and then turned over information gathered during that time period to the plaintiff’s employer, resulting in her termination.

Section 3(2) of the Act, which prohibits one from using the name or portrait of another for advertising without that person’s consent, is at issue in the ongoing Douez v. Facebook class action. The plaintiffs in this case are asserting that Facebook used the name and picture of Ms. Douez and potentially of 1.8 million other British Columbians without consent. This case has attracted considerable attention as a result of the Supreme Court of Canada’s June 2017 decision, Douez v. Facebook, Inc., 2017 SCC 33, in which Facebook was unsuccessful in ousting Ms. Douez’s class action from the reach of our British Columbia Court.

Facebook attempted to do so by relying on the forum selection clause contained in its Terms of Use pursuant to which every user of Facebook agrees, by a click of the mouse, to submit to the California Court and California laws for any dispute that may arise. The Supreme Court of Canada’s decision not to enforce this forum selection clause is discussed in a recent blog post. Ms. Douez’s class action alleging the breach of section 3(2) of the Act will now be pursued through our British Columbia Court.

Matters brought under sections 1(4) and 3(2) generally do not involve defamation, since the disputes are over intrusions into the plaintiffs’ lives rather than the dissemination of information. As noted by Chief Justice McLachlin of the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, privacy protection does not figure prominently in defamation jurisprudence in part because “defamation law is concerned with providing recourse against false injurious statements, while the protection of privacy typically focuses on keeping true information from the public gaze”.[ix]

However, cases involving both defamation and breach of privacy are coming up more and more. The courts take care to consider the two issues separately, so it is critical to make distinct, well-reasoned arguments.

In Griffin v. Sullivan, 2008 BCSC 827, the plaintiff successfully argued that the defendant breached his privacy and defamed him. It was held that the defendant improperly obtained the plaintiff’s name and other personal information, attached it to defamatory statements regarding the plaintiff, and published it on the Internet. The judge was careful to analyze the law of defamation and the law on breach of privacy separately and broke down the plaintiff’s damage award accordingly.

The plaintiff in Hollinsworth v. BCTV, 1996 CarswellBC 2820, [1996] B.C.J. No. 2638 (S.C.), aff’d in (1998) 59 B.C.L.R. (3d) 121 (C.A.), had undergone surgery to correct his baldness. In doing so, he signed a release permitting the doctor to film the procedure and share the recording with other physicians for training purposes only. Seven years later, BCTV was doing a story on baldness and its treatment and got in contact with Look International, an organization which the plaintiff’s doctor had released the training video to. Look International provided the video to BCTV and lied about having permission from the plaintiff to do so. BCTV aired the clip, which showed the plaintiff’s full face for approximately three seconds.

The plaintiff brought an action for libel and for breach of privacy. He was not successful in his libel claim, because the court found that the video was true – he had undergone treatment for baldness. However, the plaintiff was successful on the grounds of breach of confidentiality and breach of his right to privacy under the Act against Look International. Again, the judge considered the issues separately and distinctly.

These issues also come up in more protracted, complex disputes. In Nesbitt v. Neufeld, 2010 BCSC 1605, aff’d in 2011 BCCA 529, the defendant, Ms. Neufeld, sought damages from the plaintiff, Dr. Nesbitt, for defamation and breach of privacy in her counterclaim. The plaintiff engaged in inappropriate conduct throughout the course of the custody dispute, including: faxing intimate email exchanges Ms. Neufeld had had with a subsequent partner to the partner’s work repeatedly; writing letters to the Rotary Club Ms. Neufeld belonged to suggesting that she was mentally unstable, sexually deviant, lied about him in court, and was exposing their daughter to pedophiles; sending letters to the Ministry of Child and Family Development suggesting the same; posting a video to YouTube about Ms. Neufeld; creating two malicious websites about her; and so on.

The Court was careful to consider the defendant’s claims for defamation and breach of privacy discretely. It found the documents written by the plaintiff about the defendant to be defamatory and the dissemination of the defendant’s personal email correspondence to be a breach of privacy under the Act. Although the two issues were considered separately, the Court awarded global damages of $40,000 for both torts.

If you are thinking of bringing a defamation claim in addition to a breach of privacy claim, or if you are the defendant in an action where both claims have been brought against you, remember that although there may be some overlap, the courts consider the two issues independently of one another. Keep in mind that the courts tend to have minimal tolerance for plaintiffs that plead multiple unnecessary causes of action. Accordingly, attempts to inappropriately “dress up” a defamation claim as a breach of privacy claim as well, or vice versa, are ill-advised.[x] We recommend that you consider retaining counsel that can highlight such issues for the court and effectively navigate these complex areas of the law if you find yourself in the unfortunate position of having to mount or defend such a claim.

To learn more about these issues, contact Karen R. Zimmer at kzimmer@ahbl.ca, leader of our Defamation + Public Risk Management Practice.

The assistance of Emma Waterman, temporary articled student, in preparation of this post is gratefully acknowledged.

[i] Lougheed Estate v. Wilson, 2017 BCSC 1366 at para. 155

[ii] Raymond Brown, Brown on Defamation, 2nd ed (Toronto: Thomson Reuters Canada) at 1.6

[iii] Hung v. Gardiner, 2003 BCCA 257

[iv] Jones v. Tsige, 2012 ONCA 32 at para. 54

[v] At para. 52

[vi] Ibid at para. 53

[vii] Ibid at paras. 65-67

[viii] See also Heckert v. 5470 Investments Ltd., 2008 BCSC 1298, wherein the plaintiff was also awarded $3,500 after surveillance cameras were installed directly outside of her front door by her apartment’s building management to specifically track her movements.

[ix] At para. 59

[x] Niemela v. Malamas & Niemela v. Google Inc., 2015 BCSC 1024 at para. 51