Wednesday 15 February 2012

Invasion of Privacy

Privacy is sometimes related to anonymity which is our desire to remain unnoticed or unidentified in the public realm. When something is private to a person, it usually means there is something within them that is considered inherently special or personally sensitive. The right not to be subjected to unsanctioned invasion of privacy by the government, corporations, banks or individuals is part of many countries' privacy laws, and in some cases, even their country’s constitutions.

Almost all countries have laws which in some way limit privacy. An example of this would be a law concerning taxation, which normally requires the sharing of information about personal income or earnings. In some countries individual privacy may conflict with freedom of speech laws and some laws may require public disclosure of information which would be considered private in other countries and cultures. Privacy may be voluntarily sacrificed, normally in exchange for perceived benefits such as applications for welfare or old-age pensions and applications for employment. Often this can involve specific dangers and losses such as voluntarily disclosing one’s history of traffic offences when applying for insurance for motor vehicles.

In this article, I am going to deal with the issue of people conducting unauthorized invasions of privacy.

Information or data privacy refers to the evolving relationship between technology and the legal right to, or public expectation of privacy in the collection and sharing of data about one's self. Privacy concerns exist wherever uniquely identifiable data relating to a person or persons are collected and stored, in digital form or otherwise. In some cases these concerns refer to how data is collected, stored, and associated. In other cases the issue is who is given access to information.

In Canada, records kept in credit bureaus is considered sacred and access to a person’s credit records can only be obtain legally if and only if the person to whom the record refers to has given his or her permission for someone to access the record.

Some time ago, a friend of mine asked me to prepare a letter to the president of the Bank of Montreal with respect to a loans officer accessing his credit bureau record without his authorization. She called my friend into her office when she saw him in the bank and then told him that he would be eligible for a loan if he chose to apply for one since his credit record at the credit bureau showed that he had a favorable designation. Needless to say, he was furious because he hadn’t given her permission to access his credit record and as a result of his complaint, the loans officer was severely dealt with and the president of the back apologized to my friend for the invasion of his privacy.

Another case involving an invasion of privacy took place in Ontario when a person whose privacy was invaded illegally decided to sue for damages.

In July 2009, the appellant, Sandra Jones (the victim who was appealing the original decision), discovered that the respondent, Winnie Tsige (the person who invaded the victim’s privacy), had been surreptitiously looking at Jones’ banking records. Tsige and Jones did not know each other despite the fact that they both worked for the same bank (Bank of Montreal —BMO) although at different branches.

Jones maintained her primary bank account at the same branch that Tsige worked at. Tsige by co-incidence became involved in a relationship with Jones’ former husband. For about four years, Tsige used her workplace computer to access Jones’ personal bank accounts at least 174 times. The information displayed included transactions details, as well as personal information such as date of birth, marital status and address. Tsige did not publish, distribute or record the information in any way but she did disclose the information to Jones’ former husband.

Jones became suspicious that Tsige was accessing her account and complained to BMO. When confronted by BMO, Tsige admitted that she had looked at Jones’ banking information, that she had no legitimate reason for viewing the information and that she understood it was contrary to BMO’s Code of Business Conduct and Ethics and her professional responsibility.

Tsige explained to her supervisor then that she was involved in a financial dispute with Jones’ former husband and accessed the accounts to confirm whether he was paying child support to the appellant Jones who obviously did not accept that explanation as she says it was inconsistent with the timing and frequency of Tsige’s snooping.

Tsige had apologized for her actions and insisted that she had ceased looking at Jones’ banking information. Tsige was contrite and embarrassed by her actions. BMO disciplined Tsige by suspending her for one week without pay and denying her a bonus.

Jones sued Tsige for $70.000 for invasion of privacy and $20,000 for punitive and exemplary damages. In her statement of claim, she inserted that her privacy interest in her confidential banking information had been ‘irreversibly destroyed’ and that Tsige had breached her fiduciary duty to her.

The matter was originally heard in a Superior Court. Rather than go for a full trial, Jones’ lawyer brought in a motion for summary judgment. Tsige’s lawyer brought a cross-motion for summary judgment to dismiss the action.

The issue before the court was; can a victim whose privacy has been breached sue for damages?

The motion judge found that Tsige did not owe Jones a fiduciary obligation and dismissed that aspect of her claim. Jones did not appeal that finding. The motion judge then reviewed the jurisprudence concerning the existence of a tort of invasion of privacy. He observed that recent Superior Court decisions have refused to strike out such claims at the pleading stage and that some academic writing indicated that that the tort may exist.

However, the motion judge added that given the existence of privacy legislation protecting certain rights, any expansion of those rights should be dealt with by statute rather than common law (decision of a judge).

The motion judge dismissed Jones’ motion for summary judgment and granted the motion brought by Tsige. He rejected Jones’ submission that costs should be denied on the ground that the issue was novel and that Tsige’s conduct was objectionable. The motion judge felt that Jones had pursued the litigation aggressively and failed to accept reasonable settlement offers. He awarded costs against her at $356,000.

The question of whether the common law (the courts) should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance, and various property rights. Although the individual’s privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy had up to 2011 remained uncertain.

Anyone 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. There can be no doubt in anyone’s mind that Tsige’s intrusion into Jones’ personal financial records was highly offensive.

No provincial legislation provides a precise definition of what constitutes an invasion of privacy. The courts in provinces with a statutory tort are left with more or less the same task as courts in provinces without such statutes. The nature of these acts does not indicate that we are faced with a situation where sensitive policy choices and decisions are best left to the legislature. To the contrary, existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.

In Canada, there had been no definitive statement from an appellate court on the issue of whether there is a common law right of action corresponding to the intrusion on seclusion category. Ontario trial judges have, however, often refused to dismiss such claims at the pleading stage as disclosing no cause of action and some have awarded damages for claims based on violations of the right to be free of intrusion upon seclusion. The clear trend in the case law is, at the very least, to leave open the possibility that such a cause of action does exist.

Most American states have recognized a right of action for invasion of privacy rights. Generally speaking, to make out cause of action for invasion of privacy, a plaintiff in the United State must show:

1. an unauthorized intrusion;
2. that the intrusion was highly offensive to the reasonable person;
3. the matter intruded upon was private; and,
4. the intrusion caused anguish and suffering.

The first element indicates that the tort focuses on the act of intrusion, as opposed to dissemination or publication of information. The focus of the court in determining whether this element is satisfied is on ‘the type of interest involved and not the place where the invasion occurs’.

With regard to the second element, factors to be considered in determining whether a particular action is highly offensive include the degree of intrusion, the context, conduct and circumstances of the intrusion, the tortfeasor’s (the person who is the wrongdoer) motives and objectives and the expectations of those whose privacy is invaded.

In determining the third element, the plaintiff must establish that the expectation of seclusion or solitude was objectively reasonable. The courts have adopted the two-prong test used (for example) in the application of the Fourth Amendment of the United States Constitution. The first step is demonstrating an actual subjective expectation of privacy and the second step asks if that expectation is objectively reasonable.

The fourth element has received considerably less attention as anguish and suffering are generally presumed once the first three elements have been established.

In England, privacy is expressly protected by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms incorporated by the Human Rights Act which states; “Everyone has the right to respect for his private and family life, his home and his correspondence.”

Although privacy may be a value which underlies the existence of a rule of law (and may point the direction in which the law should develop)”, privacy is not a principle of law in itself capable of supporting a private law right if there is an action for damages.

And yet in 2004, in Campbell v. MGN Ltd. the House of Lords granted an injunction to restrain a newspaper from further breaches on grounds of breach of confidence publication of newspaper stories and photographs of a supermodel leaving a drug addiction treatment facility. Lord Hoffman held, in Campbell that the tort of breach of confidence had evolved into a form of privacy protection, described by the court as a tort of misuse of private information.

The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of people.

The law in England now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.

What happened recently when it was disclosed that English newspapers were in infringing of the privacy of individuals by hacking into their cell phones is proof that the law has teeth.

Jones appealed the two decisions of the Superior Court to the Ontario Court of Appeal, raising the following issues:

1. Did the motion judge err in holding that Ontario law does not recognize a cause of action for invasion of privacy?
2. Did the motion judge err with respect to costs?

Of particular relevance to her appeal, was the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, ‘even though there is no publication or other use of any kind’ of the information obtained.

The three judges in the Court of Appeal were aware of previous decisions relating to the invasion of privacy.

In Saccone v. Orr (1981), the case involved the recording of a private conversation without the knowledge or consent of the plaintiff. The recording was then played at a municipal council meeting and a transcript of the conversation published in a local newspaper. The trial judge dismissed the defendant’s argument against the existence of a tort of invasion of privacy, found in favour of the plaintiff and awarded damages of $500.

In Roth v. Roth (1991), involved interference with the plaintiffs’ ability to use and enjoy their cottage property.

The trial judge considered the application of several torts – assault, battery, nuisance and trespass – but found that the cumulative effect of the defendants’ actions could best be described as an invasion of privacy. He rejected the contention that the common law did not allow for a claim for invasion of privacy and held that the common law should not be confined to existing categories but must evolve. In recognizing the right of privacy, the trial judge quoted a passage from a leading torts text indicating that liability for breach of privacy should only be imposed where the intrusion is substantial and would be regarded as offensive and intolerable to a person of reasonable sensitivity. He then stated, “that whether the invasion of privacy of an individual will be actionable will depend on the circumstances of the particular case and the conflicting rights involved.”

In Somwar v. McDonald’s Restaurants of Canada Ltd. (2006), contains perhaps the most coherent and definitive pronouncement in Ontario jurisprudence of the existence of a common law tort of invasion of privacy corresponding to the intrusion upon seclusion category. Somwar accused his employer, McDonald’s Restaurants, of unlawfully invading his privacy by conducting a credit bureau check on him without his consent. The plaintiff claimed damages for invasion of privacy and for punitive damages. The defendant moved to strike the statement of claim and dismiss the plaintiff’s action on the basis that it did not disclose a reasonable cause of action under rule 21.01(1)(b) of the Rules of Civil Procedure.

The trial judge reviewed the Ontario case law and observed that while the cases were not entirely consistent, even where the courts did not accept the existence of a privacy tort, they rarely went so far as to rule out the potential of such a tort. The body of case law, together with the recognition by the Supreme Court of Canada of the protection of privacy under section 8 of the Canadian Charter of Rights and Freedoms led him to conclude at paragraph 29 and 31:

“With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly) and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual's personal information. The traditional torts such as nuisance, trespass and harassment may not provide adequate protection against infringement of an individual's privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence.” unquote

The Court of Appeal came to the observation that even if the plaintiff's claim for invasion of privacy were classified as ‘novel’ (which, in any event, is not a proper basis for dismissing it), the foregoing analysis led the court to conclude that the time has come to recognize invasion of privacy as a tort in its own right. It therefore follows that it is neither plain nor obvious that the plaintiff's action cannot succeed simply on the basis that he has not pleaded a reasonable cause of action.

The case law, (court decisions) 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 Canadian 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 invasion of privacy. Many legal scholars and writers who have considered the issue support recognition of a right of action for breach of privacy. For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the paces of technological changes have accelerated exponentially. 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.

Routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available as is where we have travelled and the nature of our cell phone communications, email or text messages, where we have shopped, the records of the books we have borrowed or bought and the movies we have rented or downloaded.

For example, suppose (this is directed to men) you were charged with rape when in fact you are entirely innocent. And suppose the so-called victim claims that you physically tied her up before you allegedly raped her. Now it would be your word against her word. That would normally result in an acquittal. What would be your chances of obtaining an acquittal if the prosecutor (through the efforts of the police investigators who searched for and obtained the record of times you rented movies where women were raped after being held in bondage) then brought this information before your jury? I think it would be slim to none.

It is within the realm of the courts 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 courts under various guises in Canada however since 1982 (when the Canadian Charter came into existence) the right to privacy has been recognized as a right that is integral to our social and political order.

The Ontario Court of Appeal in the Jones’ case presented facts that cried out for a remedy. While Tsige was 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 the court’s view, the law of Ontario would be sadly deficient if the court were required to send Jones away without a legal remedy.

The court ruled that anyone 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.

The key features of a cause of action in such a case is; first, that the defendant’s conduct must be intentional, within which the court 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.

On the matter of damages, the court said in part:

“It is important to emphasize that given the intangible nature of the interest protected; damages for invasion of privacy will ordinarily be measured by a modest conventional sum. Although the tort of invasion of privacy has not been fully recognized in Ontario law, several courts have awarded damages for invasion of privacy in conjunction with, or under the head of, a traditional tort such as nuisance or trespass. These claims typically involved intangible harm such as hurt feelings, embarrassment or mental distress, rather than damages for pecuniary losses.”

Egregious conduct, however, has attracted awards of aggravated damages. In Watts v. Klaemt, (2007) the plaintiff was terminated from her job when her next door neighbour, the defendant, recorded her phone calls and after discovering she was perpetrating fraud against her company, reported this to her employer. The plaintiff claimed general damages for emotional pain and suffering, loss of enjoyment of life and diminution of her reputation as well as punitive or exemplary damages for the invasion of privacy. In assessing the quantum of damages, the judge considered the degree to which the plaintiff’s life was destroyed following the invasion of privacy—notably the termination of her employment, the need to seek psychological care for depression and post traumatic stress disorder and weighed this against the plaintiff’s own misconduct. The judge awarded $30,000 including aggravated damages for the substantial degree of suffering experienced by the plaintiff. These damages were awarded against Klaemt even though the termination of Watt’s employment was justified because the neighbour had no right whatsoever to tap into Watt’s telephone.

The benchmark case for exemplary or punitive damages for an invasion of privacy under the British Columbia regime is Malcolm v. Fleming, [2000] The defendant, the plaintiff’s landlord, installed a video camera in the plaintiff’s apartment and recorded her in various stages of undress in her bathroom and bedroom. The judge awarded punitive damages of $35,000 in addition to $15,000 in general damages. In determining the figure for punitive damages the judge considered such factors as the intimate location of the invasion, the relationship between the parties as landlord and tenant as having a high expectation of privacy, the substantial premeditation and planning, the additional humiliation of discovery prior to trial, the fact that a permanent record of the violation existed creating the potential for future embarrassment and the fact that there was no other means of punishment as there was no criminal act perpetrated under Canadian law.

In Jones’ case, the court ruled that damages for invasion of privacy in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. The court fixed the range at $20,000. The factors identified in the Manitoba Privacy Act, was used as a useful guide to assist in determining where in the range the case falls:

1. the nature, incidence and occasion of the defendant’s wrongful act;
2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

The court said that it would neither exclude nor encourage awards of aggravated and punitive damages. It would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, it would not encourage such awards as, in the court’s view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range of factors that have been identified.

It was the court’s view that Tsige committed the tort of invasion of privacy when she repeatedly examined the private bank records of Jones. (These acts satisfied the elements laid out above) The intrusion was intentional, it amounted to an unlawful invasion of Jones’ private affairs, it would be viewed as highly offensive to the reasonable person and it caused distress, humiliation or anguish to Jones.
The court also said:

“In determining damages, there are a number of factors to consider. Favouring a higher award is the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000. Tsige’s intrusion upon Jones’ seclusion, this case does not, in my view, exhibit any exceptional quality calling for an award of aggravated or punitive damages.

The court allowed the appeal, set aside the summary judgment dismissing the action and in its place substituted an order granting summary judgment in Jones’ favour for damages in the amount of $10,000.

As the court set aside the judgment in favour of Tsige and granted judgment in favour of Jones, the court didn’t think it was not necessary for it to consider Jones’ contention that the motion judge erred in his costs award.

Both parties had filed bills of costs asking for significant cost awards. In the court’s view, it was appropriate to take into account the novel issue raised by this particular case which had clearly broken new ground. There is discretion to depart from the usual order in cases of novelty. In the court’s view, in the unusual circumstances of this particular case, the parties were ordered to bear their own costs.

Although this article dealt for the most part with the Jones vs Tsige case, what was decided with respect to the law in that case will apply to other cases involving the invasion of privacy.

As you can see, at least in Canada, it is conceivable that if someone invades another person’s privacy illegally, that person can be hit with damages and costs.

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