Thread by @TothSusan

Thread re privacy law: I hear people talk about their privacy rights all the time, but what people don't seem to be clear on is what that means from a civil litigation perspective. I don't think people realize how recent the ability to sue for a breach of privacy really is.

Yes, we have privacy laws (Privacy Act, PHIPA, MFIPPA, PIPEDA etc), but they tend to focus on how businesses/government retain & store your information, + FOIs. There is oversight from privacy commissioners, but no real individual remedy for breaches.

There's been some ability to sue for misappropriation of personality for a few decades, true, but that's not really a pure "breach of privacy" issue, is it? It's about using your likeness without your permission.

It wasn't until 2012 that Ontario courts created a genuine breach of privacy tort called intrusion upon seclusion (I mean, kudos on naming that one).

This tort allowed you to sue if someone recklessly or willfully invaded your privacy, w/o justification, in a way that a reasonable person would see as highly offensive.

That was a start, but didn't quite capture situations where someone was, for example, sharing private intimate photos of someone without their permission. In 2016/2018, a new tort was established to cover this: tort of public disclosure of private facts.

This new tort covers any situation where someone publicizes something private, without your consent, and a reasonable person would find such publication highly offensive, and the publication is not of legit concern to the public.

Note however, that unlike intrusion upon seclusion, the tort of public disclosure of private facts has only been found in Superior Court, not an appellate court, so it is not yet firmly established.

The last "gap", at least according to an article written in 1960, by William L. Prossner, was dealing with privacy breaches where you are the victim of someone painting you in a false light in a public manner.

This is a bit of an odd one, since one might argue that defamation law already covers this? But last year, the Ontario Superior Court decided the time was right to establish the tort of "publicity placing person in false light".

While defamation might have occurred, it isn't required. What is required is for someone to place you before the public in a false light that a reasonable person would find highly offensive (that's a theme in privacy torts!) and...

that the person putting you in that light knew or was reckless in disregarding the falsity of that publicity and the false light you have been placed under.

There's a great line in the case about how the wrong is "in publicly representing someone, not as worse than they are, but as other than they are". Still, it's hard to imagine a situation where the false light wouldn't also be defamation...

But there could be other reasons to choose this tort over defamation.

Again, this is a lower court decision, so not fully established law in Ontario, but we now have the privacy "quartet" in civil tort law - 3/4 of which are from the last decade.

Just some random privacy law tweets today. For no reason other than I was thinking about it. Privacy and defamation law are favourites of mine.

Note - all of this applies only to Ontario. Privacy laws vary province to province.