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              University Comparative Law Forum

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Oxford University Comparative Law Forum

Canada’s Statutory Privacy Torts in Commonwealth Perspective

by Chris D. L. Hunt* and Nikta Shirazian**

(2016) Oxford U Comparative L Forum 3 at ouclf.iuscomp.org | How to cite this article

In the last decade common law privacy torts have emerged in Ontario, England and New Zealand, and three recent law reform commissions in Australia have issued reports recommending similar actions in that country. Four Canadian common law provinces have had statutory privacy torts for decades (British Columbia, Manitoba, Saskatchewan and Newfoundland). These statutes offer little guidance as to when a privacy interest will arise and the case law does little to illuminate. Despite dozens of decisions, few are at the appellate level, and none have engaged in a detailed assessment of the factors relevant to assessing privacy claims in the tort context. In this paper, the authors undertake a thorough analysis of the Canadian case law, uncovering the principles latent in the existing jurisprudence, and critically examine them in light of the dynamic developments occurring in other parts of the Commonwealth. After exploring the structure and scope of these statutory torts in Part One, the authors propose that courts employ a reasonable expectation of privacy test, turning on the existence of 10 contextual factors that are elucidated in Part Two. The authors recommend that these factors be analyzed from two perspectives—the extent to which they serve to identify a privacy interest, and the extent to which they suggest an intrusion was sufficiently objectionable to warrant recognition of a prima facie claim. While the recommendations in this paper are often directed at a Canadian audience, they are informed by the comparative experience abroad and hence could be of real interest to jurists throughout the Commonwealth concerned with the principled operation of privacy torts.

Table of contents

A. Introduction

Privacy is important. There is widespread agreement amongst courts and commentators that it is anchored in the values of dignity and autonomy, and that respect for privacy is essential for human flourishing and necessary for a vibrant democracy.1 Privacy is in part defined by social norms,2 and the recognition and protection of privacy helps to define the rules of civility for society itself.3 While privacy is often examined in the context of the dangers posed by an overweening State,4 there has been recognition that its underlying values are very much engaged in relationships between individuals as well.5 Such recognition explains what one expert recently called a “privacy impulse”6 which has seen several Commonwealth jurisdictions actively develop privacy torts in the last decade.

In 2004, the House of Lords modified breach of confidence doctrine to find an invasion of privacy when a tabloid published photographs of a supermodel exiting Narcotics Anonymous.7 That same year, the New Zealand Court of Appeal created a tort aimed at disclosures of private information;8 and in 2012, a second tort capturing intrusions into private places was recognized in that jurisdiction as well.9 These developments prompted three separate law commissions to issue reports on the state of Australian privacy law, resulting in recommendations that similar civil actions be created in that country.10 Courts in Ontario have likewise very recently recognized discrete common law torts aimed at intrusions11 into private places and disclosures of private information.12 Nova Scotia may not be far behind.13

Four other Canadian provinces were Commonwealth pioneers in recognizing privacy torts. British Columbia, Manitoba, Newfoundland and Saskatchewan have had statutory privacy torts for decades. These statutes contain some differences, but are nearly identical in most respects. The British Columbia Privacy Act, which is broadly representative, provides: “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”.14 Beyond such sweeping language, these statutes offer little guidance as to when a privacy interest will arise, and the case law, such as it is, does little to illuminate. Although there have been dozens of cases decided pursuant to these statutes, almost all are trial level decisions, and none have analyzed in detail the factors relevant to such claims. As a result, the decided cases are largely impressionistic and often difficult to reconcile. Furthermore, despite the outpouring of academic commentary examining privacy torts in other countries, there has been no critical examination of the Canadian jurisprudence decided under these statutory regimes.

In this paper we aim to fill this gap. We analyze the case law pertaining to these provincial privacy statutes and assess it in light of recent developments in other Commonwealth jurisdictions. Our project is both expository and prescriptive, seeking to describe the current state of Canadian law while also suggesting various reforms throughout. In the first Part of this paper, we explore the scope and structure of Canada’s statutory privacy torts, examining, from a comparative Commonwealth perspective, the various elements set out in these statutes. Matters discussed in Part One include: the scope of these torts, the prohibited conduct contemplated by them, the statutory direction that they are actionable per se, and the requisite degree of fault. In the second Part of this paper, we develop a framework test for assessing privacy claims in the tort context, which turns on the claimant’s reasonable expectation of privacy (‘REP’). While many Canadian courts have analyzed privacy under these statutes using a REP test, there has not to date been a careful discussion of the factors relevant to its application. In Part Two we identify 10 contextual factors that have emerged in the Commonwealth jurisprudence, and evaluate their meaning and scope in light of Canadian cases which have sometimes had regard to these same principles. We argue that courts should analyze these factors from two perspectives—the extent to which they serve to identify a privacy interest, and the extent to which they suggest an intrusion was sufficiently objectionable to warrant recognition of a prima facie claim. We justify this approach throughout the paper, drawing, where appropriate, on privacy’s underlying values, and on the theoretical work of scholars, such as Robert Post, concerning the role privacy torts play in society.15 Although the recommendations advanced in this paper are often directed at a Canadian audience, they are informed throughout by the comparative Commonwealth experience, and hence could be of real interest to jurists in other common law jurisdictions as well.

Our analysis is limited to the elements constituting the prima facie case. Accordingly, we do not engage with defenses or remedies. The ensuing discussion is not aimed at cataloguing every rule or providing answers to every hypothetical invasion of privacy. Our concern, rather, is to evaluate the different ways courts and commentators have sought to translate a right of privacy into a tortious wrong, in order to arrive at a principled and workable test. Broadly speaking, we are primarily concerned with how courts should draw various lines, not where precisely they choose to do so. While our comparative analysis draws broadly from each of the Commonwealth jurisdictions mentioned above, the greatest attention is paid to developments in England and Wales, as that jurisdiction has seen the most litigation and now has the most mature and robust jurisprudence. It provides a fertile source of principles for Canadian and other common law jurists to draw on when analyzing civil claims for invasion of privacy.

B. PART 1: Structure and Scope of Canada's Statutory Privcy Torts

In this Part we examine the structure of Canada’s statutory privacy torts in light of relevant Commonwealth jurisprudence. Matters addressed include: the scope of these torts, the prohibited conduct contemplated by them, the statutory direction that they are actionable per se, and the requisite degree of fault. We also briefly consider two legislative omissions: the absence of a ‘seclusion’ requirement and of an articulated threshold of seriousness that intrusions must cross before they are actionable.

1. Intrusions and Disclosures: One Tort or Two?

A few words should be said about the scope of the provincial privacy acts. The British Columbia statute, which is representative, provides: “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”.16 Such broad drafting straightforwardly captures two distinct types of privacy invasion—the first being disclosures of private information, and the second intrusions into private affairs and places.17 While it is widely recognized that these two types of invasion strike at the conceptual core of privacy,18 it is unusual for common law, though not civilian,19 systems to cover both under a single cause of action. In Ontario, for instance, two separate common law privacy torts were recently created. In Jones v Tsige, the Ontario Court of Appeal recognized a tort capturing intrusions into private affairs and spaces;20 and in Jane Doe 464533 v. N.D., the trial court recognized an action for the wrongful publication of private information.21 These actions are expressly modeled on the separate American privacy torts reflected in the Restatement.22 This bifurcated approach, with discrete actions for intrusions and disclosures, is followed in England23 and New Zealand24 as well.

In our view, it is not desirable to maintain two distinct torts. The approach reflected in the provincial statutory drafting, which covers both species of invasion under a single action, is preferable. Notably, this model was recently recommended by two law commission reports in Australia.25 Practically speaking, the physical and informational aspects of many privacy invasions will often overlap, such as where D takes a photograph of C with a telephoto camera (intrusion) and subsequently posts it on the internet (disclosure), or where D hacks into C’s email account (intrusion) and forwards the contents to others (disclosure). This fluidity between the physical and informational aspects of privacy suggests one tort should capture both types of invasion. If separate actions existed there is a danger discordant principles could emerge between the branches, which is undesirable since both actions protect the same interest.26 Indeed, it appears that this problem has emerged in Ontario with respect to the fault element, as the intrusion tort contemplates a recklessness standard whereas the publicity tort is actionable per se, irrespective of the defendant’s intent.27 Furthermore, having two distinct actions could result in double recovery for violations of privacy. The Canadian statutory approach avoids both of these problems. In principle, where the claimant’s REP is violated by both an intrusion and a disclosure, only one tort has been committed, and the disclosure can be considered as a factor exacerbating the initial intrusion and potentially increasing the award of damages.28 Double recovery should not, however, be permitted.29 A final reason for preferring one broad tort over two discrete ones is that it facilitates maximal flexibility. This is important, given the unforeseen ways in which privacy may be invaded as technology advances.30 Notably, leading American commentators have criticized the Restatement torts as being “rigid and ossifying” and unable to adequately protect privacy in the modern Information Age, in part because two separate torts, each with multiple requirements, exist.31

2. A Note on Commercial Appropriation

The statutory privacy torts each expressly capture the ‘appropriation of personality’. These provisions are based on the American common law, as reflected in the Restatement.32 In Manitoba, Saskatchewan, and Newfoundland, appropriation refers to the unauthorized use of one’s name or likeness or voice, and these are treated as specific examples of the more general tort of invasion of privacy.33 In British Columbia, appropriation is treated as a separate “special” tort,34 not as an instantiation of the general privacy right; and the action is limited to the unauthorized use of one’s name or portrait.35 Importantly, in all four provinces, appropriation requires that the defendant’s use of the plaintiff’s ‘personality’ be for the purposes of advertising or other commercial gain.36 This requirement reflects the proprietary basis of appropriation. Scholars have long noted that it involves a mixture of property concepts with notions of privacy, and several have argued that, despite some overlap, appropriation is best understood in economic terms, often having little to do with privacy per se,37 as the source of the victim’s complaint is typically not that their private space or information has been intruded upon or disclosed, but rather that they have been deprived the opportunity to make commercial gain from their image.38 It is beyond the scope of this paper to engage with this debate. For present purposes, it is sufficient to note that appropriation claims, if they are anchored in privacy at all, certainly fall to the very outer margins of that concept.39 And as they are analyzed very differently in law, in particular not being subject to a REP test, further discussion falls outside the scope of this paper.

3. Actionale Per Se

Canada’s statutory privacy torts are actionable “without proof of damage”.40 In this respect, they align with Ontario’s common law privacy torts41, with the approaches followed in England42 and New Zealand43, and recommended by recent law commission reports from Australia.44 The Restatement privacy torts of intrusion and publicity45 are also actionable per se—a position long endorsed by leading commentators as being right as a matter of principle,46 for it responds to the underlying dignitary harm inherent in all privacy invasions, and aligns privacy torts with other dignity-based torts, such as battery.

A more difficult, and divisive, question concerns what the defendant’s requisite mental state should be. Below, we review the different standards that have emerged in Canada, and then comment on them in light of recent Commonwealth developments.

4. Fault and Wilfullness

In British Columbia, Saskatchewan and Newfoundland, the fault element is expressed through the requirement that the defendant’s conduct be “willful”.47 In Peters-Brown v Regional District Health Board,48 the Saskatchewan trial court interpreted this to mean “an act which is intentional, or knowing, or voluntary, as distinguished from accidental”.49 Although this broad framing encompasses a spectrum of standards, the court’s application of the test narrows its scope. The case involved a woman, employed at a correctional center, suing a hospital for circulating medical information which implied she suffered from an infectious disease. The hospital intended to circulate the information internally, but it somehow came to the attention of the plaintiff’s co-workers at the correctional center. The court found that the “[i]nternal [hospital] distribution of the… information was willful in the sense that it was done intentionally” but it dismissed the action as “there was never an intention to violate the plaintiff's privacy” for the defendant meant only for the records to be used by hospital staff and not be disclosed to outsiders.50 Consequently, despite the court’s broad framing of willful (which suggests it captures any voluntary act that has the effect of invading another’s privacy), its application in Peters-Brown suggests that ‘willful’ requires proof the defendant specifically-intended its actions to invade another’s privacy.51 In other words, doing an act that would foreseeably result in a privacy invasion is not sufficient.52

The British Columbia jurisprudence has interpreted ‘willful’ more broadly. In Hollinsworth v BCTV53 the Court of Appeal established that it “does not apply broadly to any intentional act that has the effect of violating privacy but more narrowly to an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person”.54 The Hollingsworth test of willfulness has been regularly applied in British Columbia55 and has been endorsed in Newfoundland.56

The Manitoba legislation structures the inquiry differently. There is no requirement that the defendant’s act be willful; however, there is a discrete defense if the defendant can show that he or she “neither knew or reasonably should have known” that his or her actions would violate the plaintiff’s privacy.57 Thus, while the Manitoba Act contemplates the same standard as British Columbia and Newfoundland, it differs in operation, insofar as the onus is placed on the defendant to disprove actual or constructive knowledge, rather than on the plaintiff to prove that he or she possessed such knowledge. As explained below, the common law approach followed in England is largely the same as Manitoba’s, and is in our view the most desirable test of fault.

The common law privacy torts recently recognized in Ontario suggest further differences still in relation to fault. In Jones v Tsige, Justice Sharpe “essentially adopt[ed]” the American tort of intrusion upon seclusion58 which requires that one “intentionally intrude”59 onto another’s private affairs. He understood this to require conduct which is “deliberate”60 within which he included “reckless”.61 The latter concept, when coupled with his statement that the conduct “must be intentional”62, suggests his Lordship had in mind something approximating the concept of recklessness in criminal law, namely: “The conduct of one who [subjectively] sees the risk and takes the chance”.63 The same standard was recently endorsed by the Australian Law Reform Commission (‘ALRC’).64 Consequently, it is fair to say the Jones standard lies between the Saskatchewan test (requiring specific intent) and the British Columbia approach (which may be satisfied on the basis of constructive knowledge alone). Finally, in Jane Doe Justice Stinson adopted the Restatement publicity tort. Curiously, unlike the intrusion tort, this Restatement tort is silent with respect to the defendant’s mental state; actionability is established once the conduct element is proved, irrespective of the defendant’s state of mind. This Restatement framing is reflected in Justice Stinson’s reasons.65 In Ontario, then, we have the odd situation in which disclosures impose strict liability but bare intrusions require something approximating criminal recklessness. Given the factual overlap between these two types of invasions, this discordance is problematic.

There has been tension in the English jurisprudence on the fault element as well. In Campbell v MGN Lord Nicholls said a prima facie case arises when the defendant discloses information in relation to which the claimant has a reasonable expectation of privacy, without mentioning the defendant’s state of mind; whereas Baroness Hale suggested that the defendant must “know or ought to know” of the claimant’s REP.66 In Murray v Big Pictures the Court of Appeal settled on Lord Nicholls’ approach as the prima facie test, but it also said one non-determinative factor in assessing a REP is the “absence of consent and whether it was known or could be inferred”.67

In our view, there are principled reasons for eschewing a requirement that the defendant must know—either actually or constructively—of the claimant’s privacy interest before a prima facie claim will arise. First, it is simply not clear how the defendant’s knowledge of the claimant’s desires for privacy is logically related to the question of whether a privacy interest exists, at least from a conceptual standpoint. Simply put, one person’s interest in privacy, in the conceptual abstract, may exist irrespective of another person’s appreciation of the same.68 Second, requiring the defendant to know of the claimant’s REP would take this action out of step with the structure of other dignitary torts—a point made more than fifty years ago by Edward Bloustein.69 In the tort of battery, for instance, there is no requirement that the defendant appreciate his act is unlawful; all that is required is that he act ‘intentionally’ in the sense that he voluntarily makes physical contact with the claimant.70 According to Peter Cane:

[Torts that are actionable per se] protect rights. Rights create protected spaces (both physical and metaphysical); and crossing a boundary into a protected space without the permission of the right-holder is tortious in itself...Tort liability for boundary crossing is strict. The only requirement is that the boundary-crossing should have been the agent’s act; in other words, it must not have been involuntary.71

Accordingly, there is a principled argument that Murray is right to hold that a prima facie claim arises once a REP boundary is crossed voluntarily, and that this is not to be conditioned on the defendant’s appreciation of the same.72 Nicole Moreham, New Zealand’s leading privacy scholar, disagrees with this conclusion. She prefers Baroness Hale’s formulation on the basis that it would prevent holding a defendant liable in cases where he could not possibly know the claimant expected privacy. She offers the example of a defendant disclosing a mundane piece of information about X that, unbeknownst to him, enabled Y to identify X as the secret donor of a large sum of money.73 More broadly, the concern, raised by other commentators, is that without some fault requirement the tort would operate as a “strict liability” regime, possibly penalizing “purely accidental losses of privacy”, which is said to be “too onerous in terms of ordinary social interaction”.74 These are important points. In our view, however, if the law desires on policy grounds to limit relief in such cases, it is better to do so by way of a limited defense, as reflected in the Manitoba statute, rather than by creating a threshold requirement that the defendant must know of the claimant’s REP.75 This is preferable for two practical reasons. First, such cases will be relatively rare, and thus should be dealt with as exceptional defences rather than as elements of actionabilty.76 Second, this would place the onus on the defendant, and thereby relieve the claimant of having to prove what the defendant could or could not have reasonably known, which would add complexity to the inquiry, causing delay and increased costs.77

5. Without Claim of Right

The provincial acts all require the defendant’s conduct to be “without claim of right”.78 There is no equivalent in Ontario’s privacy torts, or in the common law actions operating in England, New Zealand or Australia.79

In Davis v McArthur the British Columbia Supreme Court interpreted this to mean “an honest belief in a state of facts which, if it existed, would be a legal justification or excuse”.80 This dicta was affirmed by the Court of Appeal in Hollinsworth,81 and cited with approval by the Saskatchewan Queen’s Bench in Peters-Brown.82 Each of these cases was recently endorsed in Newfoundland in Rideout v Health Labrador Corp.83 Unfortunately, beyond recitation of this test, the cases are short on analysis. In Davis, the defendant, a private investigator who was hired by the plaintiff’s wife to surreptitiously surveil him, was held not to be acting under a ‘claim of right’, for there is no general right for such investigators to invade another’s privacy.84 Similarly, in Watts v Klaemt, it was held that the defendant, who deliberately intercepted and recorded his neighbour’s telephone conversation, allegedly because he feared for his safety, was not acting under a ‘claim of right’ because as a “private citizen” he could be in “no better position” than the investigator in Davis.85 Likewise, in Wasserman v Hall86 the defendant’s ‘claim of right’ submission was rejected in relation to his installation of videorecorders on his own property which were deliberately trained on his neighbour’s yard and home.87

There are very few cases in which a claim of right was found to exist. In Hollinsworth, Lambert JA appeared to hold that a claim of right will exist where the defendant, who published a video of the plaintiff, did so in circumstances honestly believing there was consent.88 In Peters-Brown, a claim of right was established where the defendant hospital had circulated information about the plaintiff’s infectious disease internally among its staff in order to “safeguard its employees”.89 Finally, In St Pierre v Pacific Newspaper Group Inc90, it was recently suggested that, in addition to the Davis formulation, above, an “‘honest belief' must sensibly require a degree of reasonableness to meet to the purpose of the Privacy Act” and that “‘honest belief’ would seem to imply some latitude, such as for an honest mistake, for instance where a defendant was not reckless but committed an oversight”.91 In that case, the defendant newspaper published a photo of the plaintiff in which he was mislabeled as a suspected terrorist when in fact he was a lawyer acting on behalf of a suspected terrorist. Rice J determined that it would have been legitimate to publish a genuine photo of a terrorist suspect, and since the defendants “honestly believed, and it ha[d] not been shown unreasonably, that they were publishing a photo of [the suspected terrorist]”92 there was a ‘claim of right’ insulating the newspaper from liability.

In light of the paucity of analysis, it is difficult to state the scope of this doctrine with confidence. Nevertheless, several observations are apposite. In the seminal decision of Davis, which has now become the standard test, Justice Seaton borrowed his definition for ‘claim of right’ from the criminal law doctrine “colour of right” which he understood to bear “somewhat the same meaning”.93 Although the precise scope of criminal law ‘colour of right’ is not entirely settled, it is clear that the concept is a subjective one, meaning the mistaken belief must be honestly held, and that it is not subject to an overriding reasonableness requirement.94 Accordingly, it may not be correct (at least without further justification) to suggest, as Rice J did in St Pierre, that a reckless, or unreasonable, but nevertheless honestly held mistake cannot qualify as a claim of right under the Privacy Act.95 It is also important to emphasize that the criminal doctrine extends beyond mistakes of fact that if true would provide an excuse to encompass also a “mistake in civil [as opposed to criminal] law” which would also have that effect.96 It is not clear whether a ‘claim of right’ under the provincial privacy acts should likewise extend to mistakes of civil law that, if true, would constitute a defense. Bracken v Vancouver Police Board et al. appears to be the only decision to address this question, and there it was held that claim of right is limited to mistakes of fact.97 However, this determination is not terribly secure, as the court did not explain its reasoning, nor did it consider that this doctrine is borrowed from the criminal law one, and that mistakes of civil law will ground a colour of right defense under the latter. Moreover, the finding in Peters-Brown, above, suggests implicitly that mistakes of law may qualify under the Privacy Act, for how else can one characterize the claim of right that was accepted in that case?98

In our view, courts should be slow to accept that a mistake of civil law can constitute a claim of right under the Privacy Acts, for doing so threatens to eviscerate the protections these regimes were designed to confer.99 Consider, for example, a newspaper that publishes salacious gossip or intrusive photographs about a public figure and whose editors claim they honestly believed doing so was in the public interest.100 Even if a court ultimately determined that the public interest defense was not established, the mere fact of their honest belief in the same would nevertheless constitute a claim of right and hence a complete bar to recovery. Notably, many courts in the United States have approached the Restatement defence of ‘newsworthiness’ in this manner.101 Commentators have aptly termed this the “leave it to the press” approach,102 as courts defer to the media’s own judgement as to the public interest.103 The effect has been dramatic, as privacy claims invariably lose on the theory that anything published by the media is newsworthy by definition.104 No less dramatically, permitting mistakes of civil law to qualify as claims of right would mean, logically at least, that defendants could avoid liability for any invasion of privacy on the basis they honestly believed the plaintiff did not enjoy a REP, for, if that legal determination were true, there would be no prohibition on their actions. Such an approach would undermine the objective test of willfulness, discussed above, and lead to an erosion of privacy rights, given how nuanced, context-specific, and conceptually fraught privacy itself is. It can be expected that in many cases defendants can honestly claim to have not believed the victim enjoyed a legal right to privacy.

6. Publicity or Misuse: The Requisite Degree of Disclosure

The provincial Privacy Acts do not require that disclosures reach a certain level of circulation before a prima facie claim arises. The Manitoba, Saskatchewan and Newfoundland statutes expressly contemplate that a single unauthorized “use” can constitute an invasion of privacy.105 The privacy action operating in England is the same in this respect,106 as is the statutory privacy action recently recommended by the ALRC.107 This approach contrasts with the disclosure tort recognized in Ontario in Jane Doe and the similar action operating in New Zealand recognized in Hosking. These torts, like the American Restatement tort upon which they are based, each expressly require that the plaintiff’s private information be publicized by the defendant.108 As explained in the relevant Restatement commentary, unlike “publication” in defamation law, which is a term of art that captures a single disclosure to a third person, “publicity” in the privacy tort:

means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.109

In our view, there are principled reasons for eschewing a publicity requirement. First, and most importantly, privacy may, conceptually at least, be compromised by a single unauthorized disclosure. Ruth Gavison110, a leading theorist111, has developed a conception of privacy as ‘limited access’, a core component of which is “secrecy”, which she argues may be violated by any unauthorized disclosure of personal information to others.112 Similarly, Nicole Moreham, a leading contemporary privacy theorist, has argued that “information will be ‘private’ if the person to whom it relates does not want people to know about it”.113 These conceptual accounts of privacy resonate with the values of dignity and autonomy that underpin the right to privacy.114 Lord Nicholls, for instance, identified in Campbell that “the right to control the dissemination of information about one’s private life” is central to personal autonomy.115 Such statements have found purchase with the Supreme Court of Canada as well. In R v Tessling, for example, Justice Binnie, citing Alan Westin116, another prominent theorist, explained that:

Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”…. Its protection is predicated on the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit.117

To the extent any ‘publicity’ requirement means a single or small scale disclosure of personal information is not actionable, it is discordant with theoretical currents in the literature concerning the nature of privacy and is insensitive also to the values of dignity and autonomy that underpin it. A second, and related, objection is that requiring publicity has the potential to work serious injustice in individual cases. Consider, for example, a slight modification of the facts of Jane Doe. The plaintiff, a high school student, entrusted her boyfriend with a video in which she was engaged in an intimate sexual act. Despite the defendant’s assurances nobody else would see it, he posted the video online and showed it to some of his friends. Because of the online posting, ‘publicity’ was easily established. However, had that not occurred, it is possible her claim would have failed. But surely, that would not be right; Justice Stinson’s finding that the plaintiff was “devastated, humiliated and distraught”118 would almost certainly describe her reaction to his disclosure even if only a handful of her schoolmates were given the video.119

7. Intrusion in Public Places: The Seclusion Requirement

The provincial Acts do not expressly exclude prima facie claims from arising where the plaintiff is in a public place. Indeed, in Manitoba, Newfoundland and Saskatchewan the legislation indicates claims may arise where the plaintiff is “followed”.120 It is difficult to imagine many instances of ‘following’ that are not carried out in public. Absent a clear indication to the contrary, a plain reading of these provisions suggests the respective legislatures intended to include some instances of ‘public place privacy’ within these statutory schemes.121 Nevertheless, as we illustrate below, there is a strong current in the jurisprudence rejecting claims on the basis that the plaintiff was in a public place at the time of intrusion. This can be seen in cases like Milner v Manufacturer’s Life Insurance Co122, in which the defendant, an insurance agent who was investigating the plaintiff for malingering, followed and photographed her son while he was playing soccer outdoors. The court tersely dismissed the suggestion the son’s privacy could be violated because the “photographs were taken in a public place”.123 Similarly, in Druken v RG Fewer and Associates Inc124 a Newfoundland court held that videotaping the plaintiff on a public street was not actionable because “overt actions and behaviours occurring in public are not really ‘private’ in nature at all”.125

The Restatement approach to tort privacy also invariably excludes claims arising in public.126 It accomplishes this through two definitional filters. First, the intrusion tort only applies where the plaintiff or his affairs or concerns are in a place of “seclusion”.127 Accordingly, there is generally no liability if the plaintiff is in a public place, or if his affairs or concerns are not shielded from public view, for he is not then in seclusion.128 Furthermore, American courts have developed a doctrine of plain view, in reference to anything visible from a public vantage point. Accordingly, there is generally no liability where the defendant has spied on the claimant, in his house or garden, from a public road.129 Second, in relation to the disclosure tort, the matter publicized must be “private”, and the Restatement commentary directs that public information, such as that gleaned from public records or gathered from a public place, is simply not private.130

In Jones v Tsige, Sharpe JA “essentially adopt[ed]” the Restatement intrusion tort,131 and throughout his reasons he refers to this action as the “tort of intrusion upon seclusion”.132 Curiously, however, when framing the ingredients of the tort, he omits reference to ‘seclusion’ although he does indicate, in terms borrowed from the Restatement, that the action is aimed at protecting “private affairs” and “concerns”.133 In light of the above, it is not entirely clear whether this tort may operate in relation to intrusions occurring in public places or information gleaned from public sources. A narrow reading of the case suggests the Restatement limitations are imported; and indeed, the documents at issue in that case—private banking records—were secluded in the sense that they were located on an internal banking server, and hence would be actionable in the United States.134 In Jane Doe, Stinson J likewise “essentially adopt[ed]” the Restatement publicity tort, thereby suggesting that the definitional bifurcation between ‘private’ and ‘public’, in American law, may be imported into Ontario’s disclosure tort.135

In C v Holland,136 the New Zealand High Court recognized an intrusion tort. Like Sharpe JA in Jones, it referred to the tort as intrusion on seclusion, and expressly modelled it on the Restatement tort,137 which suggests it would not likely capture privacy in public places.138 In Hosking, the New Zealand Court of Appeal departed from the Restatement language when setting the elements of its publicity tort (conditioning the action on the existence of a REP, rather than on the definitionally restrictive standard of ‘private facts’139), yet members of the court expressed the view that, generally speaking, it will not be possible to establish a REP in public places or in relation to information in the public domain,140 absent exceptional circumstances.141

The English approach contrasts with the American, Canadian and New Zealand common law privacy torts just mentioned, insofar as it does not define ‘private’ in opposition to ‘public’, nor does it have a discrete seclusion requirement.142 Campbell, the seminal House of Lords decision, involved surreptitious photography of a supermodel taken in public while she was exiting Narcotics Anonymous. The majority determined that her privacy was violated when a tabloid published the photograph along with information that she was a drug addict. Subsequently, in Murray v Big Pictures, the Court of Appeal found a violation of privacy when a paparazzo threatened to publish photographs of JK Rowling’s toddler it took while they were on a public street.143 There has also been some suggestion in England that even bare intrusions—without subsequent disclosure—can be actionable where the victim is in public, though it seems likely this will be a rare case.144

There are a number of objections to adopting a rule that excludes claims from arising in public places. As these arguments have been advanced in detail elsewhere,145 we will simply highlight a few key points here. Commentators have observed that the Restatement ‘seclusion’ requirement is based on an unconvincing theory of waiver or implied consent.146 The underlying rationale is that, by venturing into public, people impliedly consent to any foreseeable intrusions that follow.147 This reasoning is specious, for one can of course be aware of a risk without consenting to it.148 Indeed, insofar as other intentional torts are concerned, implied consent will not be found simply because the victim was aware her rights may be violated and failed to take precautionary measures.149 Moreover, it has been noted that the definitional bifurcation between ‘public’ and ‘private’, discussed above, is logically flawed.150 It is also empirically suspect. In this respect, Chief Justice Gleeson, of the High Court of Australia, has stated: “There is no bright line between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private”.151

Perhaps more fundamentally, any rule that prevents privacy claims from arising in public circumscribes the right to privacy in a manner that does violence to its underlying values. Many courts152 and commentators153 have noted that privacy is a dignity-based interest, rooted in human autonomy. Autonomy can be undermined in public. Take the example of covert photography. Stanley Benn argues this is offensive to personal autonomy because “it deliberately deceives a person about his world, thwarting, for reasons that cannot be his reasons, his attempts to make a rational choice”154 about how to present himself. Rational people modify their behaviour depending on context. If a person is not aware another is watching her, she is deprived of the opportunity to manage her behaviour and control how she is perceived.155 Of course, overt surveillance can also offend autonomy. By inducing very real changes in human behaviour, overt hounding impinges on autonomous choice. Indeed, it was this interference with personal autonomy, where the claimant was photographed in a public place, that led the Supreme Court of Canada to find a violation of privacy under Quebec’s civil code in Aubry v Editions Vice Versa.156

8. A Threshold of Seriousness: The Highly Offensive Requirement

The statutory torts in British Columbia and Newfoundland stipulate that the “nature and degree of privacy” a person is entitled to is that which is “reasonable in the circumstances”.157 Beyond this, they do not require invasions to cross any particular threshold before they are actionable. The Manitoba regime, in contrast, requires that invasions be “substantial”.158

The common law privacy torts of intrusion and publicity operating in Ontario,159 and in New Zealand,160 incorporate the American Restatement approach, which provides that neither species of invasion is actionable unless it can be characterized as being “highly offensive”.161 In Jones, Sharpe JA explained this means the “reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish”.162 A similar interpretation was endorsed in New Zealand’s Hosking case.163 As with Manitoba’s ‘substantial’ requirement, the purpose of this requirement is to exclude claims brought by the unduly sensitive and ensure that only “significant invasions of privacy are actionable”.164 The Victoria Law Reform Commission (‘VLRC’)165 recently recommended an additional highly offensive requirement. The ALRC initially proposed, in its study paper166, that the highly offensive standard be adopted, to ensure civil actions arise only where the defendant’s conduct is “thoroughly inappropriate and the complainant suffers serious harm as a result”.167 However, in its final report, the ALRC dropped this idea, though it did recommend, much like the Manitoba legislation, that invasions of privacy only be actionable if they are “serious”.168

English courts, in contrast, have rejected a discrete highly offensive requirement. In Campbell, Baroness Hale doubted the need for this threshold, and preferred a simple REP test as being “much simpler and clearer to apply”.169 Subsequently, in Murray, the Court of Appeal endorsed a REP test and set out various factors guiding its application.170 One of these factors is the ‘effect on the claimant’ and another cluster concerns the defendant’s purpose and motives.171 The presence of such factors may serve to buttress a court’s finding that there is a privacy interest at hand, but it is not essential for the plaintiff to prove he or she suffered distress from the invasion or that the defendant behaved in an offensive manner. An approach very similar to Murray was recently recommended by the New South Wales Law Reform Commission (‘NSWLRC’)172 and, as mentioned, in the ALRC’s final report as well.173

In our view, the highly offensive requirement is not appropriate. There are many principled and practical reasons for eschewing it, which have been explored in detail elsewhere.174 Here we canvass a few of the more salient points in precis. First, it has been noted that this requirement is simply unnecessary. Tipping J, one of the judges in Hosking, held that the normative REP test is itself more than capable of weeding out trivial claims,175 for it is necessarily sensitive to the defendant’s behavior and its impact on the claimant. This same position has been expressed by academics,176 and the NSWLRC.177 Simply put, should the law desire to not recognize trivial claims, it can achieve this result by declaring them to be unreasonable in the circumstances—a familiar judicial exercise. Second, and relatedly, because questions of offensiveness must overlap with the normative REP inquiry,178 retaining the former as a discrete requirement adds a layer of analytic redundancy, that is likely to confuse, rather than facilitate, clear and consistent analysis. This latter problem is compounded because offensiveness is “inherently vague” and may invite “idiosyncratic notions” of acceptable behavior.179 Third, having an additional offensiveness requirement undermines the cogency of the normative REP test, as it implies the law may not find a prima facie claim, despite declaring it to be reasonable. If so, this may serve to undermine what ‘reasonable’ means, exacerbating the uncertainty just mentioned. Fourth, it has been noted that requiring distress or anguish “obscures the fact that all privacy interferences undermine the plaintiff’s dignity”.180 Finally, an additional offensiveness requirement takes privacy torts out of step with other dignity-based torts that are actionable per se. These torts, such as trespass to the person, are designed to vindicate the “indignity inherent in unwanted touching” and hence proof of damage or distress is not required.181 As privacy is also anchored in human dignity, and as these torts are actionable per se throughout the Commonwealth (discussed above), reasons of doctrinal consistency militate against incorporating an additional requirement that privacy invasions be highly offensive in the sense that the claimant must demonstrate injury, humiliation or anguish.

C. PART 2: The Framework Reasonable Expectation of Privacy Test

The provincial Privacy Acts do not define ‘privacy’, nor do they stipulate a test for determining a prima facie cause of action.182 In three provinces the legislation does however provide that the “nature and degree” of privacy a person is entitled to is that which is “reasonable in the circumstances...”.183 Unsurprisingly, in light of this direction, courts have typically approached privacy claims by asking whether a reasonable expectation of privacy exists,184 emphasizing that this inquiry must have an “inherent elasticity” that is responsive to individual contexts.185 The action in England also turns on the existence of a REP,186 as do the privacy torts operating in New Zealand187 and recommended by three law commission reports in Australia.188

This approach has several advantages. Privacy scholars have long argued that privacy rights exist on a spectrum, and the strength of any particular claim depends conceptually on the totality of circumstances in which it arises.189 Insofar as the REP test is grounded in a relativistic premise—that privacy is a “matter of…degree rather than a matter of absolutes”—190 it resonates with this conceptual understanding of privacy, and overcomes the blunt definitional bifurcation between ‘public’ and ‘private’ often followed in American law.191 Two further practical advantages are that, owing to its “open-textured” approach, the test is flexible and well suited to respond to unforeseen privacy threats192 arising from changes in technology.193 And because the concept of reasonableness is one that judges routinely apply to other torts, it dovetails with established private law principles.194 Indeed, in Campbell Baroness Hale endorsed a REP test because it was in her view simple and clear for judges to apply.195 This is doubly true in Canada, where courts have long undertaken a REP analysis in relation to privacy rights (vis-a-vis the State) arising under s.8 of the Charter of Rights and Freedoms.196

Reasonable expectations typically cut two ways. They serve to justify a prima facie right to privacy, and they work to reject undeserving claims.197 While this latter feature serves as a necessary, and desirable, objective check on the scope of privacy rights,198 it has been criticized on the basis that it can be self-eroding. What is reasonable is shaped by social norms, and there is a risk that judges may reject claims as unreasonable where the impugned invasion is commonplace and hence should have been foreseen.199 This can be problematic, because, as one scholar puts it, “[i]f the law [only] protects what the mores of the community view as private”, by reference to the amount of privacy we customarily receive, “then the more privacy is invaded the less privacy is protected”.200 While this is an important caution, it is not a fatal criticism of the REP test. The danger can be overcome if courts are careful in their analysis and approach the test from a normative perspective, asking whether privacy should be protected in the circumstances (having regard to its underlying values and the manner in which the invasion occurred), not whether it is routinely respected empirically.201 Judges are capable of applying ‘reasonableness’ in this normative manner, as they do, for instance, when assessing the standard of reasonable care in negligence law,202 and indeed when evaluating REPs under the Canadian Charter of Rights.203

Another criticism is that, due to their open texture, REP tests are inherently uncertain. This bites particularly hard at Canada’s statutory torts, as they offer almost no legislative guidance. It is worth reiterating, however, that with this weakness of uncertainty comes the virtue of flexibility. While this is a perennial tension in every area of law, it seems where privacy is concerned contextual flexibility is the more important consideration, since privacy is a relative concept existing in degrees. Edward Bloustein, echoing the words of Warren and Brandeis from their seminal article “The Right to Privacy”, responded to this objection more than fifty years ago:

[T]here can be no precise or detailed formula for the threshold of liability in privacy cases any more than there can be a precise formula in the large class of cases in law in which the reasonableness or unreasonableness of an act is made the test of liability...[The lack of a more precise formula is] not at all an indication of a failure of thought or of an inadequate theory of liability. It is merely a reflection of the complexity and variety of the circumstances in which [privacy can be invaded].204

Bloustein’s rejoinder convinces. Nevertheless, Canada’s statutory privacy torts would benefit considerably from further elucidation of the factors relevant to assessing a REP, given the lack of legislative guidance and the paucity of Canadian jurisprudence. The experience in other Commonwealth jurisdictions is a fertile source for cross pollination. The privacy action in England is particularly instructive, because it has been the subject of the most litigation and contains the most complete list of factors.205 In Murray, Lord Justice Clarke propounded the following approach:

The first question is whether there is a reasonable expectation of privacy... The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity...

[This test] takes account of all the circumstances of the case…includ[ing]: [1] the attributes of the claimant, [2] the nature of the activity in which the claimant was engaged, [3] the place at which it was happening, [4] the nature and purpose of the intrusion, [5] the absence of consent and whether it was known or could be inferred, [6] the effect on the claimant and [7] the circumstances in which and [8] the purposes for which the information came into the hands of the publisher.206

Broadly speaking, two different questions are latent in the English REP test. The first is to identify a privacy interest; and the second is to gauge whether, in the circumstances, the claim is sufficiently serious to warrant judicial intervention. The law should not vindicate every expectation of privacy, only those that are reasonable in the circumstances; and in deciding whether a claim is reasonable, it looks not just to the nature of the privacy interest but also to the manner in which it was violated. This is because courts are not asked to define privacy rights in the abstract, but to decide whether the claimant should be free from the specific intrusion at hand. These issues, while discrete, are intermixed in the normative question posed by the REP inquiry.207

Once these two questions are borne in mind, we are able to make sense of the list of factors in Murray which ostensibly pull in two directions. While some are claimant-oriented and serve to identify a privacy interest (such as the nature and location of the information/activity), others are defendant-oriented and seem unrelated to whether a particular matter is conceptually ‘private’ (such as the purpose of the intrusion and whether the defendant knew the claimant had not consented to disclosure). This difference has not been the subject of judicial comment or scrutiny. In our view, the latter group of factors is best explained as aimed at determining whether the impugned intrusion is sufficiently objectionable to justify a prima facie claim. The Court of Appeal’s analysis in Murray implicitly supports this interpretation. The case involved photographs of J.K. Rowling’s toddler taken in plain view on a public street. The court emphasized the photos in question were not simply taken as street scenes (which it suggested would not be actionable), but rather were taken “deliberately, in secret and with a view to their subsequent publication...for profit, [and] no doubt in the knowledge that the parents would have objected”.208 In other words, despite the relatively weak privacy interest (given the anodyne nature of the photos coupled with the public place in which they were taken) the court nevertheless found a prima facie violation by reference to what may be called the defendant’s offensive behavior. Interestingly, the legislation in British Columbia, Saskatchewan and Newfoundland also directs courts to consider the defendant’s behaviour.209 The jurisprudence is sparse; but it has been suggested in British Columbia that assessing the defendant’s conduct is a different question than identifying the claimant’s privacy interest.210 Additionally, the statutes in Manitoba, Saskatchewan and Newfoundland provide several examples of prohibited acts of the defendant that courts are to consider when assessing the plaintiff’s privacy rights.211 Both the NSWLRC212 and the ALRC213 also recommended that questions pertaining to the defendant’s offensive conduct be treated as non-determinative factors material to the REP inquiry.

In this Part, we build on the approach propounded in Murray, which appears to be contemplated by the Canadian privacy statutes as well, by exploring various contextual REP factors. We analyze these factors from two perspectives—the extent to which they serve to identify a privacy interest, and the extent to which they suggest an intrusion was sufficiently objectionable to warrant recognition of a prima facie claim. Sometimes, on this approach, the latter considerations (labelled ‘offensiveness factors’) will not be necessary because the privacy interest itself is sufficiently strong to justify a claim—put differently, intruding onto the particular privacy interest, because of its strength, will itself be an offensive flouting of social norms; but other times, the presence of one or more such offensiveness factors will serve, as per the analysis in Murray, to justify judicial intervention despite a relatively weak privacy interest. It follows that the offensiveness factors should not in our view operate as an independent hurdle which must be crossed in every case (unlike the discrete ‘highly offensive’ requirement operating in Ontario, America and New Zealand and as recommended by the VLRC); rather, we treat these factors as additional considerations that can militate in favour of recognizing a prima facie claim. Furthermore, in contrast with those approaches, above, that require the intrusion to be ‘highly offensive’, ours does not treat ‘offensiveness’ as referring to the distress or anguish suffered by the claimant; rather, ‘offensiveness’ serves simply as a heading which organizes the various defendant-oriented ‘offensiveness factors’ discussed below.

Approaching the REP inquiry from this dual perspective can be justified in principle. As mentioned, the defendant’s offensive behavior is a consideration necessarily imbedded in the normative approach contemplated by the REP inquiry. To say an expectation of privacy is reasonable is to say the claimant is entitled to be free from the impugned intrusion. In making this assessment, courts should consider not only the nature of the privacy interest, but also the manner in which it was undermined. As Witzleb notes, where the defendant’s conduct is offensive “it can be reasonably expected that [he] will not engage in it and will respect the plaintiff’s privacy”.214 This resonates with the underlying conceptual basis of the right, since what is properly a private matter is determined partly by prevailing social norms.215 It also reflects the influential analysis offered by Robert Post216 regarding the key policy functions performed by the American privacy torts, insofar ‘offensiveness’ directs courts to consider whether there has been a flagrant violation of social norms. Immediately below we briefly elaborate on Post’s argument, to make good this last claim; we then move, in the following sections, to elucidate various claimant and defendant-oriented factors that in our view should be considered by courts when assessing REPs in the tort context.

Post’s argument is grounded in the symbolic interactionist school of sociology associated with Erving Goffman.217 Goffman’s insight was that the development of an individual’s personality is dependent upon the interactions between that person and his or her community. Communities, in turn, are also defined by these same interactions. Goffman calls such interactions ‘rules of deference and demeanour’. The former refers to conduct by which a person conveys appreciation “to a recipient of this recipient”; and the latter refers to conduct by which a person expresses to others “that he is a person of certain desirable or undesirable qualities”.218 Together, these rules (which Post calls “rules of civility”219) constitute norms of “conduct which bind the actor and the recipient together [and] are the bindings of society”.220 Importantly, “by following these rules, individuals both confirm the social order in which they live and constitute ritual and sacred aspects of their own and others’ identities”.221

Building on Goffman’s sociological work, Post argues that privacy torts have a dual function: They not only protect the individual’s dignity interest, but they also enforce rules of civility (or social norms) for the sake of society itself, because doing so maintains society’s “distinctive shape, its unique identity”.222 Specifically, the intrusion tort recognizes what Goffman called “territories of the self”.223 By protecting these territories, the law safeguards the respect each person is due. Intrusions into private territories evidence a lack of respect (an offence to dignity, which is intrinsically harmful) and, in doing so, also undermine the victim’s belief that his “existence is his own” (since his independence is bundled up with his entitlement, respected by others, to control access to his self) which is a precondition to personhood.224 The disclosure torts operate in an analogous manner, protecting informational territories rather than physical ones.225

Importantly, for our purposes, Post finds support for his theory of the dual policy functions performed by privacy torts in the Restatement test of offensiveness. Testing ‘offensiveness’ requires the judge to construct a reasonable person who is a “genuine instantiation of community norms” whose reactions, in turn, must be “predicated upon a quality that inheres in such norms”.226 For this reason, Post concludes that:

[A] more precise characterization of the conceptual structure underlying [the Restatement torts] is that a plaintiff is entitled to relief if it can be demonstrated that a defendant has transgressed the kind of social norms whose violation would properly be viewed with outrage or affront, and that the function of this relief is to redress injury to ‘personality’…It rests on the premise that the integrity of individual personality is dependent upon the observance of certain kinds of social norms [in accordance with Goffman’s sociological account].227

D. Claimant-Oriented Factors

The factors discussed in this section serve to identify a privacy interest. It is useful to consider each factor independently for expository purposes. It should be borne in mind, however, that in most cases more than one factor influenced the result, as the normative REP test of necessity requires a global assessment of every relevant factor in the specific context of the case.

1. Nature of the Activity or Information

The nature of the activity or information intruded upon or disclosed will often be the crucial consideration under the REP inquiry and itself capable of justifying the existence of a REP.228 In the Charter context, the Supreme Court of Canada has said that the more “personal or confidential” the information, the more reasonable it is to expect privacy.229 It has sometimes also used the analytic device known as the “biographical core” in reference to information “which tends to reveal intimate details of the lifestyle and personal choices of the individual”, which the court treats as deeply private.230 While these concepts may be of some assistance in identifying privacy rights in the civil context, it is important to emphasize that claims under Canada’s statutory privacy torts are not limited to information falling within a ‘biographical core’.231

In Lenah Chief Justice Gleeson, of the High court of Australia, cautioned there is “no bright line between what is private and what is not”, but he also said there are three broad categories of information that are “easily identifiable as private” in the civil context, namely information pertaining to a person’s health, personal relationships and finances.232 As a general matter, these categories resonate with the concept of the biographical core, mentioned above; and each has also finds support in the English and Canadian privacy tort jurisprudence. Here we mention a few examples from these two jurisdictions. As to the first two categories, it has been held that information about health233 and medical treatment,234 as well as information concerning sexual life including details of sado-masochistic sex,235 adulterous affairs,236 gender identification and sexual orientation237 all are easily identifiable as private. More broadly, it has been held that information relating to an intimate, but non sexual, relationship can also attract a REP.238 Personal financial information likewise attracts a REP,239 but purely commercial or business information likely will not, unless some other REP factor(s) militate(s) in favour of treating this as private.240 Nude images, both of a sexual241 and non-sexual nature,242 have been identified as obviously private as well. More broadly, these categories of information reflect the European Court of Human Rights’ (‘ECrtHR’) sensible position that, as a general matter, the more intimate the information/activity concerned, the greater the justification required to interfere with it.243

It might be argued that a logical corollary of the above is that certain types of information or activities are simply too trivial to warrant prima facie protection. In McKennitt v Ash, Eady J applied this reasoning to exclude from protection details of the celebrity- claimant’s shopping trip, which she had communicated in confidence to the defendant who subsequently disclosed these in a ‘tell all’ book;244 and in Campbell, Baroness Hale suggested the privacy tort would not capture photographs taken and disclosed of someone “pop[ping] out to the shops for a bottle of milk”.245 Insofar as these findings suggest some ‘triviality’ rule focused exclusively on the information or activity at issue, we think they are misplaced. Simply put, focusing exclusively on the nature of the information or activity can produce distorted outcomes, because the presence of additional factors can work in combination to justify REP, even where the information itself is anodyne. Consider Griffin v Sullivan246, a recent trial level decision from British Columbia, in which an invasion of privacy was found where the defendant posted the plaintiff’s name and photograph on an online chat forum. Although this information is mundane, at least in the abstract, it became deeply personal in context because the plaintiff had been posting anonymously on a suicide chat forum. Compromising his anonymity in this way was held to be a serious invasion of privacy.247 In our view, even trivial information contained in one’s diary should attract a REP (because of the form in which it is held), as should anodyne activities occurring in one’s home (because this location is inherently private).248 The simple but important point is that context matters. Moreover, the English Court of Appeal and the ECrtHR have acknowledged that where the values underpinning privacy are engaged, and where the defendant’s intrusion is particularly offensive, a REP should exist even though the information gleaned is banal.249 In short, where other factors militate in favour of a REP, arguments that the information or activity is itself trivial should carry “much less weight”.250

A few words should also be said about photographs, which often “intensify” privacy violations.251 First, because they create a permanent record, photos enable “scrutiny to be extended indefinitely”252 in a manner not possible with casual observation. Second, because photos can be analyzed in detail, they enable us to detect “subtleties not otherwise discernible” from a casual glance,253 which increases their potential intrusiveness—a point emphasized by Lord Phillips MR in Douglas v Hello! (No. 3)254 and repeatedly by the ECrtHR.255 Finally, photos have the potential to “multiply the impact” of the initial intrusion through subsequent dissemination to much larger and to differently constituted audiences.256 People tailor their behaviour based on context; and conduct that is appropriate in one situation may be embarrassing in others. A woman may be content to sunbathe topless on a beach, but whatever annoyance she feels at attracting casual glances is not comparable to the humiliation and distress she may suffer if a picture is taken and circulated on the internet.257 For these reasons, the taking of a photograph cannot be equated with a casual glance, or even a prolonged stare; and courts must be sensitive to this when assessing the intrusive nature of otherwise ostensibly anodyne information captured on camera.

Finally, when assessing the sensitivity of the information or activities, courts should consider the extent to which the values underpinning privacy may be engaged. It has long been recognized that one reason privacy is important is because of its close connection to individual autonomy258; and that, through exercises of autonomy, privacy facilitates the well-being of the individual and his or her development of personal relationships with others.259 It is for this reason that courts in England and the ECrtHR have been especially concerned when the paparazzi intrude into activities of celebrities engaging in activities relating to ordinary ‘family life’. This can be seen in Murray, in which the Court of Appeal emphasized that the surreptitious photos taken of J.K. Rowling’s child occurred while the family was on an “expedition to a cafe” which was “part of each member of the family’s recreation time intended to be enjoyed by them” and “publicity of it is intrusive and such as adversely to affect such activities in the future”.260 This reflects the ECrtHR’s position that privacy rights are “primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings” which has led it to find violations where innocuous photographs were taken of Princess Caroline of Monaco while spending time with her friends and family in public places.261

2. Form of the Material

The statutory privacy torts in Manitoba, Saskatchewan and Newfoundland state that the unauthorized use of letters, diaries or other personal documents is an “example” of an invasion of privacy.262 They also provide, as further “examples”, the defendant’s listening to or recording of the plaintiff’s telephone conversations or messages to which the former is not a lawful party.263 The ALRC likewise recommended that these and other analogous forms in which the information is held or communicated be considered when assessing a REP.264 The underlying rationale is simply that reasonable people expect a heightened degree of privacy in relation to information in such forms, because the forms themselves suggest the victim does not desire to have this information accessed by others without consent. This heightened REP would generally exist even where the information itself is banal.265 Moreover, Canadian266 and English267 courts have recognized that, in principle, the same reasoning should apply to electronic information, such as that contained on a password protected computer or email account. Here, a further rationale for protection is that computers typically contain deeply personal information such as “details of our financial, medical, and personal situations” and, when used on the web, “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet”.268 Moreover, where information is imparted in confidence, this will strongly militate in favour of treating the information as private.269 According to Buxton LJ, in the English Court of Appeal, to embark upon the REP inquiry without considering the existence and nature of the relationship in which information was initially communicated would be “unlikely to produce anything but a distorted outcome”.270 Furthermore, it has also been suggested in England that the stronger or more permanent the relationship, the more reasonable it is for the claimant to expect that his private information will not be disclosed outside of it.271 Failure to protect mundane information that is communicated in the form of confidences would undermine the values of personhood and relationship development that are linked to dignity and autonomy and underpin the privacy right.

3. Location

The claimant’s location at the time of alleged invasion must be an important factor in assessing the reasonableness of his or her expectation of privacy. Not surprisingly, when claims have been brought in Canada in cases where the defendant intruded into an obviously private place, courts have not hesitated to let this factor drive the REP analysis. A recent example is TKL v TMP272 in which the defendant secretly videotaped his step-daughter while she was in the shower. Justice Thompson held:

Little analysis is necessary on the facts of this case…The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed… The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy.

Likewise, Canadian courts have had no trouble finding invasions of privacy where one neighbour trains a video camera on the other’s property, capturing images inside the home;273 and where one neighbour deliberately intercepts and records another’s telephone conversations occurring inside their residence.274 While such cases are surely correct, insofar as reasonable people expect to be free from such intrusions, we have also seen, above, that other Canadian courts have taken the view that invasions occurring in public places cannot be actionable. In Sibler (c.o.b. Stacey’s Furniture World) BCTV Broadcasting Systems, for example, the defendant television station videotaped and broadcast a physical scuffle that had erupted outdoors between the plaintiff and members of a union during a labour dispute. Justice Lysyk dismissed the claim, holding: “Events transpiring on this parking lot could hardly be considered private in the sense of being shielded from observation by the general public”.275 Similarly, in Milner276, the plaintiff’s young son had no expectation of privacy when photographed by an insurance investigator while he was playing soccer outdoors;277 and in Druken278 we saw that videotaping the plaintiff on a public street was not actionable because “overt actions and behaviours occurring in public are not really ‘private’ in nature at all”.279 More dramatically still, in Milner the court also found no invasion of privacy in relation to the plaintiff herself who was videotaped while in her home by an insurance investigator through an uncovered window. The court determined that although generally speaking expectations of privacy are high in one’s home, they were low on the night in question because the plaintiff left the lights on and the blinds open and was plainly visible to passersby.280

Above, we criticized this latter group of cases for being grounded in a specious ‘waiver’ premise (namely, that one consents to all foreseeable intrusions), and for their logically and empirically flawed definitional bifurcation between ‘public’ and ‘private’ (which fails to appreciate that many locations fall somewhere in between).281 On those, and other bases, we rejected any blunt rule that precludes privacy claims from arising in public places or places observable from public vantage points.282 Fortunately, other Canadian tort cases have taken a more nuanced approach, treating the plaintiff’s ‘public’ location as important but not necessarily determinative. In Heckert v 5470 Investments Ltd, for example, which concerned a landlord’s training of a video camera in the hallway of his building which captured the plaintiff entering and exiting her apartment suite, Walker J observed “a reasonable expectation of privacy may exist in public places”283 and stressed there “remains a high degree of discretion for a trial judge to determine what is a reasonable expectation of privacy in the circumstances”.284 He concluded that:

[e]ven though the hallway… is a public place… Ms. Heckert is reasonably entitled to be free from the scrutiny of a surveillance camera recording her every movement in and out of her suite especially where the positioning of the camera allows the person watching the video a view that is disturbingly intrusive.285

In our view, this contextually nuanced approach, which treats the claimant’s location as simply one non-determinative factor, is preferable for it responds to the social reality that the degree of privacy reasonable people expect varies according to their location. A similar approach was recommended by the ALRC286, repeatedly endorsed by English courts,287 and followed by at least one decision in New Zealand.288 Of course, some locations, such as one’s home, are inherently private and the law should have little trouble finding a REP in relation to most information and activities occurring therein.289 At the other end of the spectrum are truly public places, such as Parliament Hill, where REPs are greatly reduced, as a general matter, but may nevertheless exist if other factors militate in favour of protection. Innumerable gradations lie in between. In our view, the best way to approach such claims is to first assess the relative ‘privateness’ of the place, and to then consider how any other factors—claimant-oriented and defendant-oriented, discussed in this Part of the paper—are relevant to a REP in the circumstances.

In assessing the relative ‘privateness’ of a given location courts should be guided by prevailing social norms—a point made by courts,290 law commissions291 and commentators.292 Applying these norms, we can say that, generally speaking, the more people present, the less private the place.293 We can also say that if the claimant does not believe he or she is visible/audible to others, a REP is bolstered.294 Courts should go beyond merely counting heads, however, and consider also the character of the place. Reasonable people expect a greater degree of privacy when attending a hospital, a mosque, or even a brothel, than they do when shopping for groceries—even if they are visible to the same number of people at each of these locations. Courts should also consider the character or class of people at the location in question. Moreham asserts there is a “certain reciprocity” in group behaviour which can vest an activity with a degree of privacy it may otherwise lack, such as where a woman assumes inelegant positions with others at a yoga class.295

Another key consideration will be whether the conduct complained of is something that can be expected to arise in the ordinary course of things.296 Courts should thus distinguish between being photographed while simply walking the street, and being photographed while attending a public protest297 or while in some way drawing attention to oneself.298 Moreover, in Aubry the Supreme Court of Canada suggested no liability would arise if anodyne photographs are taken in a public place in which the subject appears incidentally as part of a street scene, rather than as its central focus.299 This dicta was endorsed by Lord Hope in Campbell,300 and the principle has been expressed by the ECrtHR as well.301 This distinction reflects social reality—the former is likely an ordinary incident of living in a free community, but the latter, normatively, need not be.

It has also been suggested by courts302 and commentators303 that a person will likely have a REP where the relevant activity can be characterized as intimate, embarrassing or is one in which the person finds himself in a situation of distress.304 In Peck v United Kingdom the ECrtHR held the applicant’s privacy was violated where CCTV footage, taken of him roaming the street with a knife after attempting suicide, was subsequently broadcast on TV. In Campbell Lord Hoffmann cited Peck with approval and suggested these circumstances should militate in favour of a REP regardless of the claimant’s location.305

Importantly, social norms must always be assessed from a normative perspective, so that the question is whether any particular location ought to militate in favour of or against a REP. Accordingly, in our view, courts should also be sensitive to any deliberate and obvious efforts the claimant makes to seek privacy, since absent some overriding defense, fellow citizens should not intrude upon others where they evidence a desire to be let alone. If this is true, then we can say that a greater degree of privacy exists on a secluded section of beach than on the central part,306 whispered conversations on park benches are more private than louder ones, and efforts to restrict access to an activity should militate in favour of a REP.307 In each of these cases, a “reasonable person, applying contemporary standards of morals and behaviour, would understand [such activities are]... meant to be unobserved”.308

4. Attributes of the Claimant

The “attributes” of the claimant was listed in Murray as a REP factor,309 and the ALRC likewise recommended this as an important consideration.310 The precise meaning and scope of this factor is not entirely clear, and it has not been mentioned explicitly in any Canadian cases. Nevertheless, it is worthwhile briefly exploring its relevance and possible meaning.

In Murray the court said the position of a child is “very different” from an adult, and this is an important consideration when assessing a REP.311 The underlying rationale appears to be that children, by virtue of their immaturity, are inherently vulnerable.312 It follows that other forms of vulnerability should likewise be considered. Thus, a semi-conscious patient, like the celebrity-claimant whose hospital room was invaded by paparazzi in Kaye v Robertson, should have an elevated REP313. Indeed, in Davis v McArthur, the British Columbia Court of Appeal said that a “helpless invalid” may be “entitled to a greater degree of privacy as another”.314 Similarly, the law should be sensitive to people with intellectual disabilities whose capacity to control self-presentation may be diminished.315 Arguably, this principle should be extended so that any other factor making the claimant particularly vulnerable will become important. Moreham offers the example of a person who is vulnerable to stalking, and asserts this should militate in favour of a REP if she seeks to restrict publication of her address.316 It has also been suggested that courts be especially respectful of cultural differences when assessing the reasonableness of an individual’s expectation of privacy.317 Different cultures may have different expectations in relation to the sensitivity of certain information, and may be particularly affected by its disclosure. Failing to take such differences into account will likely produce distorted outcomes.

The ALRC further recommended that the claimant’s ‘attributes’ can also include his or her occupation.318 There has been some support for this view in Canada as well. In Fouad v Wijayanayagam,319 the British Columbia Court of Appeal determined that the plaintiff, a physician, could not have a reasonable expectation of privacy in his medical credentials.320 In Niemela v Malamas321 the British Columbia Supreme Court held that the plaintiff, a lawyer, did not have a REP “in relation to how he performs his professional work”.322

It also seems right that where the claimant has a public profile of some significance, this ‘attribute’ can influence the scope of his or her REP.323 David Beckham should not be able to claim a prima facie human rights violation every time a young fan takes his photograph, and Justin Bieber should not be able to prevent a blogger from reporting that he ate lunch at a famous restaurant. To hold otherwise is to trivialize the tort and take it completely out of step with social reality.324 Such claims, without more, are simply normatively unreasonable, given the anodyne nature of the information coupled with the claimant’s high public profile. However, it must be immediately emphasized that the scope of this principle must be narrow, otherwise it threatens to undermine the tort’s utility for those who often need it most. The privacy of public figures is a difficult area of law, and a detailed discussion falls outside the scope of this paper.325 For present purposes, it is sufficient to offer a few general comments. In our view, a good statement of principle can be found in Hosking, where the New Zealand Court of Appeal said:

The right to privacy is not automatically lost when a person is a public figure, but his or her reasonable expectation of privacy in relation to many areas of his life will be correspondingly reduced as public status increases.326

Applying this principle, courts could properly exclude from prima facie protection minor intrusions, such as those identified above. However, in our view a prima facie claim should arise if the intrusion extends beyond the de minimis level. In deciding whether this is the case, courts should have regard to the other claimant-oriented and defendant-oriented REP factors discussed in this Part. So, for example, if the photograph depicted Beckham in a state of distress or embarrassment, or was taken while he was in a relatively private place, then a prima facie claim should lie;327 and if the blogger acted in an offensive manner, by harassing Bieber, taking photographs surreptitiously, or publishing a bevy of blogs detailing his every meal that week, his privacy rights are engaged.328 Any intrusion beyond the de minimis must be justified, and this is best approached by considering the ‘newsworthiness’ of material and balancing this against the strength of the privacy interest at hand.329 But in deciding whether this de minimis line is crossed, courts should not disregard the claimant’s public profile, because, insofar as minor intrusions are concerned, it is normatively unreasonable for public figures to expect the same level of privacy that ‘ordinary’ people do.330

The difference in treatment is justified by appealing to prevailing social norms. Celebrities attract public attention in a way that ‘ordinary’ people do not. If the privacy tort is to operate in the real world of human interaction, then the normative REP test must be sensitive to this obvious social reality. It is worth reiterating here that many torts are definitionally connected to social norms331, and that privacy itself is also tied to social norms at a conceptual level.332 Consequently, in our view, it is sensible to distinguish between public figures and ordinary people when deciding whether a prima facie right to privacy should arise, and this approach can be justified in principle.333 It is worth noting that two recent law commission studies in Australia have expressed the same view,334 as have two leading English textbooks.335 Similarly, in A v B Plc, Lord Woolf said that while public figures are entitled to private lives, claimants with high public profiles generate public curiosity and must tolerate some intrusions that would be unacceptable for private citizens.336 And in Sciaccia v Italy, the ECrtHR contrasted an “ordinary person” with someone who “featured in a public context (public figure or politician)” and concluded that being in the former category “enlarges the zone” of privacy.337

5. Conduct of the Claimant

The claimant’s conduct may also be important when assessing a REP. Above, when analyzing ‘location’, we discussed this issue in the context of those who draw attention to themselves at public events, noting that this may legitimately reduce one’s REP. Here, we briefly examine how the claimant’s ‘carelessness’ at the time of invasion, and also how his or her conduct occurring before the alleged invasion, particularly ‘courting publicity’, may affect the REP analysis.

The ALRC recommended the claimant’s conduct at the time of invasion be considered,338 and in Murray the English Court of Appeal said the circumstances in which photographs are taken will be important.339 Likewise, a recent New Zealand case opined that an “expectation of privacy, otherwise reasonable, may…be lost by reason of culpability on the part of the plaintiff”.340 Given the paucity of jurisprudence, it is difficult to analyze the scope of this principle in detail. Nevertheless, it seems that something similar was endorsed in British Columbia. In Milton v Savinkoff341 the plaintiff accidently left several photographs of herself in the defendant’s jacket, one of which depicted her topless. Subsequently, the defendant showed this photo to his friends, without the plaintiff’s knowledge. The court rejected her privacy claim, because of her “careless act” of forgetting the pictures in his jacket which “initiated this whole incident”.342

In our view, while it is appropriate for courts to consider the claimant’s conduct, this issue should be treated as simply one non-determinative REP factor, not as a circumstance that itself disentitles one to privacy. Treating ‘carelessness’ as determinative poses certain analytical difficulties, as the concept is ill-defined and inherently amorphous.343 Furthermore, the concept is itself context-dependent, and exists in degrees; it does not yield readily to a ‘yes’ or ‘no’ analysis. If used to drive the result, such that the existence of ‘carelessness’ must be said to exist or not, as a binary matter, then courts will have to develop the principle’s meaning with precision, which, given the variety of human affairs, is probably impossible. Accordingly, it can be expected that if this principle is determinative, consistency across the range of cases is likely to be undermined.344 Moreover, treating ‘carelessness’ as determinative, as Milton appears to, leads to undesirable consequences, in which serious invasions of privacy—those undermining the dignity of the victim, and without any legitimate reason, as in Milton—will go without redress.345

A better approach was followed by the British Columbia Supreme Court in Milner. Recall in that case an insurance investigator stationed outside of the plaintiff’s home took photographs of her as well as of her daughter inside their home, through an open window. The daughter was partially undressed at the time. Justice Melnick found that the daughter was “careless” for undressing in front of an open window at night with the lights on, but nevertheless chose not to follow Milton.346 Given the inherently private location, the intimate nature of the images, and the fact the investigator had no legitimate reason for photographing the daughter, he found the daughter to have a REP in the circumstances.347

A second, difficult issue concerns whether, and to what extent, a court should consider the fact that a claimant, alleging a privacy invasion, had previously courted publicity. While this issue has not been considered by any Canadian court to date, it has featured in other Commonwealth jurisdictions and can be expected to arise in the future. The ALRC stated that one who “courts publicity” cannot expect the same level of privacy as another who does not.348 The same point has been made by academic commentators, and recently by the Grand Chamber of the ECrtHR as well.349 English courts appear to accept this principle too. In A v B Plc Lord Woolf, for the Court of Appeal, said that where the claimant had courted publicity in relation to his private life, this can be “appropriately taken into account...when deciding on which side of the line a case falls”.350 Similarly, Eady J said it was “surely unobjectionable” to suggest, as a general proposition, that one who courts publicity has less ground to object to an intrusion which follows.351

In our view, as long as this principle is tightly controlled in three important respects, it is entirely sensible. First, courting publicity should be treated as a non-determinative factor, one that may militate against—but does not necessarily defeat—a REP. It should not be regarded as a self-sufficient justification for privacy invasions based on notions of waiver or implied consent.352 The latter arguments are conceptually dishonest, since in most cases the claimant has not actually consented to the intrusion or intended to waive his privacy rights. What is really at stake is a normative question, which the REP test is well positioned to address: does the claimant’s past behaviour make it less reasonable for him to regard this information as private?353 Second, courts must be careful to focus on the specific context of the previous ‘courting’ or disclosure and compare this to the nature of the alleged privacy violation. It cannot be right that just because a claimant courts publicity in relation to one aspect of her life (or discusses it in the media) she thereby opens up every other aspect of her life to scrutiny.354 A better approach is to say that where the claimant has courted publicity in relation to one aspect (or subject matter) of her life, this can militate against her REP in relation to that same zone.355 This ‘zonal’ approach was apparently accepted by Eady J in A v B.356 However, it was seemingly rejected by both Eady J and Buxton LJ in McKennitt,357 although arguably this was tied to the specific facts of that case. It concerned a musician, whose friend published a ‘tell all’ book describing over eight pages and in detail the claimant’s distress after her fiancé was killed in a boating accident. This information had been communicated to the friend in confidence. The claimant had previously discussed this accident on public occasions in support of her charity to promote water safety. Eady J rejected the argument that she no longer retained a REP in relation to this information, emphasizing “there is in this context a significant difference between choosing to reveal aspects of private life which one feels comfortable with and yielding up to public scrutiny every detail of personal life, feelings, thoughts and foibles of character”.358 He also emphasized that the claimant’s previous disclosures had been carefully measured and that the revelations in the book were both distressing and delved into greater detail than anything she had volunteered in public previously.359 Buxton LJ affirmed these findings, emphasizing that it was “cruelly insensitive” to suggest the claimant had a “greatly reduced” REP in relation to the “intrusive” discussions in the book based simply on the fact of her previous public disclosures.360 These findings are surely correct, and they support the third important limit on this ‘zonal’ doctrine: while it may serve to reduce one’s REP, that effect may be offset where the subsequent disclosure is more intrusive than the previous one. As in McKennitt, this enhanced intrusiveness can arise because the subsequent disclosure delves into much greater detail than the claimant’s previous public disclosures; or because the subsequent disclosure occurred in breach of confidence—itself an important REP factor (discussed above). Absent some increased intrusiveness, however, we suggest that courts should generally regard previous disclosures falling within the same zone as militating against a REP.

6. Information in the Public Domain

Canada’s statutory torts are silent regarding the extent to which privacy may exist in information already publically available; and this question has received almost no attention in the Canadian case law.361 Recall that in Jane Doe Justice Stinson “essentially adopted” the American publicity tort, which, as mentioned above, will not apply if the information disclosed was already publically available.362 It is unclear whether a similar result was contemplated for Ontario’s tort.363 The British Columbia Privacy Commissioner has said, in the context of provincial data protection legislation, that “[i]nformation that would be personal information if it were not public does not…cease to be personal information because it becomes public”.364

Given the paucity of Canadian authority, it is worth briefly examining the approach in other common law jurisdictions. In OBG v Allan, Lord Nicholls said:

[I]nformation may be in the public domain, and not qualify for protection as confidential, and yet qualify for protection on the grounds of privacy. Privacy can be invaded by further publication of information or photographs already disclosed to the public.365

This broad proposition can be justified on the basis that the values of dignity and autonomy, which underpin privacy, and give it shape, do not depend on information retaining some ‘relative secrecy’.366 Moreover, personal information that is republished may still cause distress to the victim.367 For these reasons, it is not desirable to adopt a bright line rule disqualifying victims from seeking redress simply because information is already publically available. Nevertheless, it has also been suggested that at some point information may be so widely available that it is no longer reasonably private.368 It is probably impossible to draw a firm line regarding the degree of prior availability that will render continued expectations of privacy unreasonable.369 Accordingly, we suggest this issue be approached on a case by case basis, considering each relevant REP factor.370

The following general principles should assist. First, the fact information is widely available should not itself defeat a REP if the subsequent disclosure increases the likelihood that personal information is known to others.371 This will be the case where the subsequent disclosure is broader in scope than the initial publication, or where it is aimed at a differently constituted audience (such as a general readership versus a specialized journal), or is released in a different geographic area.372 In PJS v Group Newspapers Ltd, England’s apex court recently enjoined a national newspaper from publishing a story already widely available on the internet, in part because of the qualitative difference in exposure and impact of a national newspaper compared to internet sites.373 Second, even widely known information may pass from public consciousness over time, and thereby become relatively private once more. An early American case found a privacy infringement where the defendant identified the name and location of a notorious prostitute who years earlier was involved in a high profile murder trial, but had since retreated into anonymity.374 The principle that ‘public’ information may regain its ‘private’ character over time has been endorsed by English375 and New Zealand376 courts, academic commentators377 and law commissions.378 Third, in assessing whether information is widely available, courts must be sensitive to what has been called the ‘practical obscurity’ of the information.379 The internet contains a vast repository of personal information about many of us, but much of this is often difficult to find. The same is true of public government records.380 Where D accesses this information and publishes it to the world, a privacy claim should not automatically fail on the basis this information was already publically available, for that overlooks the difference between being capable of access and actually being accessed.381 A related issue is where D publishes a combination of personal information about C, with each piece gleaned from widely viewed sources. It was held in the English case Re X and Y (Children) that combining these pieces is akin to putting together a jigsaw, with the effect that republication brings forth a new story in a new way and thus will often attract a REP.382

The above points illustrate that information gleaned from public sources may nevertheless remain relatively private in a descriptive sense, and that courts should be sensitive to this when assessing a REP. It is equally important that courts approach this issue from a normative perspective, asking whether, despite previous publicity, the claimant should be entitled to privacy. In our view, two factors militate in favour of an affirmative answer. The first is if additional publication is likely to cause someone in the plaintiff’s position distress or other types of harm. The ‘effect on the claimant’ was mentioned in Murray383 as an important consideration under the REP inquiry, and the fact that publication caused the claimant in Campbell real distress, and was likely to disrupt her drug treatment, was an important factor bolstering the strength of her privacy interest in that case.384 The United Kingdom Supreme Court now regards this as the crucial consideration militating in favour of restraint of information already widely available online.385 Second, where the republication is particularly intrusive, a REP should not be defeated simply because this information was already widely published. This will often be the case where photographs are involved:

In so far as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it...386

7. Effect on the Claimant

It seems obvious that courts should consider the effect the defendant’s actions actually had on the claimant when assessing a REP, on the theory that, generally speaking, such evidence would tend to be indicative of the invasion’s gravity. As we have seen, in each of those jurisdictions that require invasions to be ‘highly offensive’ evidence of humiliation, anguish or the like is a pre-requisite to recovery, despite these torts being actionable per se.387 And in England, the ‘effect on the claimant’ was mentioned in Murray388 as an important consideration under the REP inquiry, and the fact that publication caused the claimant in Campbell real distress was an important factor bolstering the strength of her privacy interest in that case.389

The statutory privacy torts in Canada contemplate different approaches to this question. The Saskatchewan Act directs courts to consider, when assessing whether there is a breach of privacy, the effect of the defendant’s actions on the plaintiff’s “health and welfare” or on the “social, business or financial position” of him or his family.390 The Manitoba legislation directs that these same considerations are to be taken into account when assessing damages only.391 The legislation in British Columbia and Newfoundland is silent on this issue, but courts have nevertheless had regard to such effects when assessing a REP.392 The trial judge in Davis, for example, held that a key reason for finding a breach of the Act was that a “reasonable man” in the plaintiff’s position would be “worried, apprehensive and emotionally upset” at the knowledge he is being placed under constant surveillance.393 The Court of Appeal overturned this finding, stating: How “this respondent was affected as he was is not relevant to the question of the nature and degree of the privacy to which he was entitled or whether there was a violation [of it]”.394 The Court of Appeal appears to have misinterpreted the trial judge’s finding, for it spoke of the relevance of the actual impact on the plaintiff, whereas the trial judge thought the material question was the likely impact on a reasonable person in the plaintiff’s shoes.

In our view, the trial judge’s approach in Davis is to be preferred. The ALRC has expressed a similar view (without discussing the Canadian cases).395 It recommended that courts consider the “likely harm to a person of ordinary sensibilities”.396 This formulation has several advantages. First, by concentrating on ‘likely’, as opposed to ‘actual’, the court is able to assess the gravity of an invasion in cases where the plaintiff was not in fact aware of its occurrence—such as where the victim is a young child, or a comatose patient.397 Second, by focusing on the impact on a ‘reasonable person’, as opposed to the actual claimant, it can assess the gravity of the intrusion in an objective manner, and not be unduly swayed by the distress suffered by the unduly sensitive.398 This is important, for, as discussed above, the normative reasonableness standard must be calibrated to weed out trivial claims. Third, as Robert Post has argued, concentrating on an objective standard enables the court to draw upon and police prevailing “social norms whose violation would appropriately cause affront or outrage”, in a way focusing on the idiosyncratic reactions of individuals would not. This is important because, as mentioned above, it is the upholding of such norms that in part justifies the existence of the common law privacy actions in America.399 Finally, it should be emphasized that, although the test ought to be objective, it does not follow, as the Court of Appeal in Davis suggested, that evidence of actual harm is irrelevant to the pleadings. To the contrary, evidence of actual harm suffered by the claimant should be admissible, for it “may give some indication that the invasion of privacy was likely to have that effect” on a reasonable person.400

E. Defendant-Oriented Factors

The factors discussed below focus on the defendant’s offensive flouting of a social norm or civility rule. This is what unites them conceptually. Offensiveness is not an independent threshold that must be crossed in every case, but rather an additional consideration that may buttress a privacy claim and justify legal intervention. In many cases the offensiveness factors discussed below will overlap with the claimant-oriented factors examined above, because the defendant’s bad behaviour can be expected to exacerbate the intrusiveness of the privacy violation. This overlap simply reflects the fact that questions of offensiveness are implicit in any normative REP inquiry.401 In this respect, it is interesting to note that a list of factors relevant to whether the defendant’s act was “offensive” proposed in one American case overlaps substantially with the REP factors listed in Murray.402

1. Harassment and Surveillance

“Surveillance” is an example of an intrusion in each of the provincial privacy statutes;403 and all but British Columbia’s statute further direct that “watching”, “spying”, “following” or “besetting”/“harassing” the plaintiff constitutes an invasion of privacy.404 Although the Canadian jurisprudence is sparse, there is some indication in the case law that these types of objectionable behavior serve to amplify the alleged privacy violation. In Milner, for example, Justice Melnick emphasized that the investigator’s surveillance of the plaintiff’s daughter was conducted in a “clandestine” manner, an important factor leading him to conclude it was unjustified.405 The ALRC has likewise recommended that the “means used” by the defendant, such as internet hacking or zoom photography, may suggest the plaintiff’s privacy is invaded “regardless of [the] personal information” so obtained.406

Andrew McClurg argues that harassing the claimant or subjecting him to surveillance is ‘highly offensive to a reasonable person’ and should militate in favour of liability.407 Such conduct is a serious flouting of a social civility rule, and helps distinguish between de minimis and actionable claims in situations where the privacy interest itself, analyzed in isolation, may be relatively weak.408 Recent American cases have endorsed this approach, carving out an exception to the ‘seclusion’ requirement where D’s conduct “amounts to... hounding, harassment and unreasonable surveillance”.409 In Von Hannover (no.1), the ECrtHR emphasized the claimant was “constantly hounded by paparazzi”, and that the impugned photographs were obtained in a “climate of continual harassment which induces in [her] a very strong sense of intrusion into [her] private life”.410 So central was this factor to the court’s analysis that one prominent English commentator argued the ratio should be tied to these facts, so that anodyne photographs in public places should only be actionable where some combination of these offensive factors is present.411 Similarly, the Court of Appeal in England recently said that while the simple act of taking an anodyne photograph of someone in a public place would not be actionable, respect for private life would be “grossly violated” where “aggravating circumstances” are present, such as where the claimant is “harassed and hounded” or where a “bevy” of pictures is taken.412 Such conduct, the court said, is “simply brutal”413 and can justify legal intervention even where the photographs are banal.

In Campbell Lords Hope and Carswell each emphasized that the photographs were taken surreptitiously and that this militated in favour of the claimant’s REP.414 And the ECrtHR, in its decision concerning the media’s appeal of Campbell, agreed with the majority of the House that privacy was violated. In so finding it emphasized that the photographs were particularly intrusive because they were taken “covertly with a long range lens”.415 Moreover, in Von Hannover (no 2), the Grand Chamber held that when balancing privacy and speech rights, national courts must consider the circumstances in which the impugned photographs are taken—having special regard to whether subterfuge or surveillance techniques were employed.416

2. Knowledge of No Consent

The “absence of consent and whether it was known or could be inferred” was listed as a REP factor in Murray.417 The Canadian statutory privacy torts, in contrast, each treat the victim’s consent as a complete defense, rather than an element of the prima facie case.418 The ALRC’s recommendation is the same in this respect.419 Treating consent as a defense means the burden of proof rests with the defendant. This aligns the privacy torts with other intentional torts, such as battery, which are also designed to protect the plaintiff’s dignity and autonomy,420 and hence is justified as a matter of principle. Treating consent as a defense is desirable from a practical perspective as well, because, generally speaking, it is easier to prove a positive (presence of consent) than it is to prove a negative (absence of consent); and placing the burden on the defendant incentivizes him to explain his behavior which may furnish important contextual facts for the trial judge adjudicating tortious actions.421 For these reasons, we prefer the Canadian formulation, which treats consent as a defense, to the English one that treats its absence as an element of the prima facie case.

Nevertheless, we agree with the suggestion in Murray that there may be some value, in proving the prima facie case, to consider whether the defendant knew or should have known that the plaintiff did not consent to his or her actions. Such knowledge should be treated as a non-determinative, defendant-oriented factor that can militate in favour of finding the plaintiff had a REP in the totality of circumstances.422 In Murray the court said the photographs in question were taken “no doubt in the knowledge that the parents would have objected to them” and it relied on this factor to bolster its affirmative answer to the REP inquiry.423 Andrew McClurg treats this as a factor relevant to the offensiveness of the defendant’s behaviour, which seems right in principle, since, faced with a clear indication that a person desires to be “let alone,” a “defendant would seldom be justified in persisting in intrusive conduct”.424 In other words, such conduct violates a civility rule. As noted by Chief Justice Lamer in Aubry, where the circumstances suggest the plaintiff has not consented to the publication of his or her image, there may be civil fault on the defendant’s part for not behaving as a reasonable person should and first seeking the subject’s permission.425

3. Motive and Purpose

In Murray the “purpose of the intrusion” was listed as a REP factor, and the court, when finding a violation in that case, emphasized the paparazzi photographs were “taken for the purpose of publication for profit”.426 This mirrors the approach in America, where an improper motive is relevant to whether the defendant’s conduct is highly offensive.427 The NSWLRC recommended that an improper motive should militate in favour of a REP428 as did the ALRC.429 Although the jurisprudence is limited, there is some indication in the Canadian case law supporting this approach as well. For example, in Davis Justice Seaton noted, as a general proposition, that the defendant’s purpose “is of consequence when weighing whether or not there was a violation”, and noted “the scandal seeker might violate one’s privacy” while a person acting with a “legitimate purpose” might not.430 On appeal, Tysoe JA held that the private investigator in that case had not breached the plaintiff’s privacy, in part because “he was not activated by malice or mere curiosity” but rather was pursuing a legitimate investigatory purpose.431 Milner is consistent with this finding; one of the main reasons Melnick J found the insurance investigator in that case to have breached the daughter’s privacy, but not the mother’s, despite both being surveilled through an open window in the family home, was that it was only the mother who was being investigated for malingering on her insurance policy—there was no legitimate reason to videotape the daughter.432 Other cases are to similar effect.433

Andrew McClurg has justified this approach in principle, arguing that determining whether the defendant’s action is an offensive flouting of a civility rule requires some consideration of why he acted as he did.434 As with the other offensiveness factors, the existence of an improper motive assists courts in deciding on which side of the ‘reasonableness’ line a case falls. Privacy is a socialized right, and courts must be careful not to recognize REPs too readily lest they stifle the realities of social existence. This is especially true in public places, where the countervailing interests of others, to conduct themselves without fear of liability,435 are manifest. Public space is shared and we cannot expect to control it absolutely. Nevertheless, people “owe duties to fellow-users not to behave in ways which are gratuitously offensive”.436 Having regard to the defendant’s purpose assists in drawing this line, because, as Paton-Simpson has argued, the strength of a competing social interest may be lessened where the defendant is motivated by “revenge, voyeurism [or] an attempt to intimidate”.437

It might be objected that considering the defendant’s improper motive in this way is inconsistent with foundational tort principles. In Mayor of Bradford v Pickles the House of Lords held that a lawful act will not become unlawful simply because the defendant had an improper motive.438 Interestingly, however, Finnis has rejected this ‘rule’ for two principled reasons. First, he doubts the cogency of the House’s reasoning. It justified this rule on the basis that it was the logical corollary of the principle that a good motive will not make an unlawful act lawful.439 According to Finnis:

[A]ppealing to a symmetry between right-making and wrong-making factors... sophistically ignore[s] one of morality’s most elementary principles and moral philosophy’s most strategic themes. There is no such symmetry. One’s conduct will be right only if both one’s means and one’s end(s) are right; therefore, one wrong-making factor will make one’s choice and action wrong, and all the aspects of one’s act must be rightful for the act to be right.440

Second, Finnis justifies treating a bad motive as a ‘wrong-making’ factor in principle by anchoring it in the normative underpinnings of tort law. He asserts that a bad motive (such as an intent to harm) is the “paradigmatic wrong, the exemplary instance of the denial of right”, because it evidences a lack of respect for the dignity of the other (by treating them not as an end in themselves but as a means to the wrongdoer’s ends) and thereby “makes their loss one’s gain”.441 It is the purpose of tort law, as an instantiation of corrective justice, to “rectify this denial of right” by ensuring the wrongdoer makes reparation to the victim.442 Both of Finnis’ arguments are convincing, and we would emphasize a third: even if Pickles should represent the basic rule in tort law, it does not mean exceptions cannot be made. An unlawful purpose is a sufficient ‘wrong-making’ factor in tortious conspiracy, malicious prosecution, and sometimes in nuisance.443 In our view, for the reasons discussed above, it should also be treated as an important factor in deciding whether a prima facie claim for invasion of privacy arises.

F. Conclusion

The last decade has witnessed the rapid development of privacy torts throughout the Commonwealth. Given the sheer pace of these developments, it is hardly surprising that many differences have emerged. In particular, there are important differences among jurisdictions on matters as diverse as the requisite mental element of the tort, whether invasions must cross a threshold of seriousness before they are actionable, and the extent to which privacy rights may exist in public places. What is perhaps unexpected is the degree of similarity and agreement on many other broad issues. For example, it is recognized that privacy claims must capture both intrusions and disclosures; most jurisdictions approach such claims using a multi-factoral REP test; and in each jurisdiction surveyed above, these torts are actionable per se, being anchored expressly in the claimant’s dignity and autonomy.

Ironically, despite being a pioneer in the recognition of privacy torts, Canada’s jurisprudence now lags far behind many of its Commonwealth peers. While there have been dozens of cases decided in Canada, few are at the appellate level, and rarely have courts engaged in anything beyond an impressionistic analysis. Our overriding purpose in this paper was to bring Canada ‘up to speed’, so to speak, by uncovering the principles latent in its existing case law, and to critically examine them in light of the dynamic developments occurring amongst its Commonwealth peers. Throughout this paper we have sought to be prescriptive as well as descriptive, by providing concrete suggestions for reform. Because our arguments are grounded in principle, and often framed at a higher level of abstraction, we hope that much of this paper will be of interest to jurists outside of Canada as well. The recommendations advanced in this paper are too numerous, and nuanced, to properly reprise in summary fashion here. Instead, we prefer to end with a plea—that Commonwealth jurists continue to take these comparative legal perspectives seriously when refining the operation of privacy torts in each of the jurisdictions examined above. Although courts will inevitably disagree on the application of tests to individual cases, critical engagement with the Commonwealth experience increases the odds that the underlying principles are sound.

G. Endnotes

*BA (Mt. Allison), LLB (Manitoba), LLM (Cambridge), PhD (Cambridge); Associate Professor, Faculty of Law, Thompson Rivers University (British Columbia, Canada). The authors would like to thank Professor Gerhard Dannemann and the anonymous reviewers for their helpful comments.

**BA (UBC), JD (Thompson Rivers University).

1 See, for example: Aubry v Editions Vice Versa [1998] 1 SCR 591, at paras. 21, 51; Campbell v MGN [2004] 2 A.C. 457 (UKHL), at paras. 12, 51; Von Hannover v Germany [2004] E.M.L.R. 21 (ECrtHR) at para. 50; Hosking v Runting [2004] 1 NZLR 1 (NZCA) at para. 239. For a detailed discussion of many leading scholarly accounts, see C. Hunt, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada's Fledgling Privacy Tort” (2011) 37:1 Queen's Law Journal 167, at 201-217.

2 See T. Gerety, “Redefining Privacy” (1977) 12:2 Harv CR-CLL Rev 233, 236; R. Parker, “A Definition of Privacy” (1974) 27:2 Rutgers L Rev 275, 276-7 (speaking of shared intuitions); T. Scanlon, “Thomson on Privacy” (1975) 4:4 Phil & Pub Aff 315, 316 (speaking of “explicit social rules” of privacy); WA Parent, “A New Definition of Privacy for the Law” (1983) 2:3 Law & Phil 305, 306-7 (defining privacy with reference to cultural norms and social practices).

3 R. Post, “The Social Foundations of Privacy: Community and Self in the Common Law Tort” (1989) 77 Calif. L.R. 957. We elaborate on the point in Part 2, below, when discussing the proposed reasonable expectation of privacy test.

4 See, for example: Canada (Combines Investigation Acts, Director of Investigation and Research) v Southam Inc, [1984] 2 SCR 145 at para 27; R v Wong, [1990] 3 SCR 36, at para. 47.

5 Indeed, the cases cited at footnote 1 each dealt with privacy interests between individuals. In Campbell, supra note 1 at para. 50, Lord Hoffman said: “I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification”. The UKHL invoked the doctrine of ‘horizontality’ to imbue the private law of breach of confidence with the values of privacy protected in the Human Rights Act. The same reasoning was followed by Sharpe JA in Jones v Tsige, 2012 ONCA 32, at paras. 40-5, when his Lordship created a common law privacy tort by drawing on the doctrine of Charter values; cf Alberta (Information Privacy Commissioner) v United Food and Commercial Workers Local 401, 2013 SCC 62, at paras. 19-24 (declaring all legislation aimed at protecting privacy in the private law context “quasi-Constitutional” in status because of the importance of privacy and its underlying values).

6 L. Austin, “Privacy and Private Law: The Dilemma of Justification” (2010) 55:2 McGill L.J. 165, 167, 169.

7 Campbell supra note 1.

8 Hosking supra note 1.

9 C v Holland, 2012 NZHC 2155.

10 Victoria Law Reform Commission, Surveillance in Public Places, Final Report 18, 2010; New South Wales Law reform Commission Report 120; Australian Law Reform Commission, ‘Serious Invasions of Privacy in the Digital Era, Final Report’ June 2014.

11 Jones v Tsige, supra note 5.

12 Jane Doe 46533 v N.D., 2016 ONSC 541.

13 See Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245 at paras 53-80.

14 Privacy Act, RSCB C. 373, s. 1(1) [Privacy BC]. The Saskatchewan and Newfoundland Acts are virtually identical:; The Privacy Act, RSS 1978, c P-24, s 3(c) [Privacy SK]; Privacy Act, RSNL 1990, c P-22, s 4(c) [Privacy NL]. The Manitoba Act omits the word ‘willfully” and inserts the qualifiers that the violation be “substantial” and “unreasonable”: The Privacy Act, CCSM c P125, s 3(c) [Privacy MB]. These differences are explored in detail below.

15 Post, ‘Privacy’, supra note 3. We elaborate on this point in Part Two, below, under the heading ‘Reasonable Expectations of Privacy’.

16 Privacy BC supra note 14 s. 1(1). The Saskatchewan and Newfoundland Acts are virtually identical: Privacy SK supra note 14, s 3(c); Privacy NFLD supra note 14, s 4(c). The Manitoba Privacy Act omits the word ‘willfully” and inserts the qualifiers that the violation be “substantial” and “unreasonable”: Privacy MB supra note 14, s 3(c). These differences are explored in detail below.

17 Indeed, the Acts list non-exhaustive examples of privacy invasions that include a mixture of intrusions and disclosures. See, for instance, s. 3 of the Saskatchewan Privacy Act, listing surveillance, and use of diaries or letters, among others: Privacy SK ibid.

18 Nicole Moreham has recently observed that these two dimensions of privacy are widely accepted by most privacy scholars—see, for a list of many sources here, N. Moreham, “Beyond Information: Physical Privacy in English Law” (2014) 73:2 Cambridge LJ 350 at 3, n 10; cf C. Hunt, ‘Conceptualizing’ supra note 1 (discussing many theorists that recognize these two essential dimensions of privacy); Australian Broadcasting Corp. v. Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (HCA), 251 (noting intrusion and disclosure reflect core of privacy drawn from the value of personal autonomy, quoting Sedley LJ in Douglas v Hello! [2001] 2 WLR 992, 1025).

19 In Quebec, to take one apposite civilian example, s. 5 of the Charter of Human Rights and Freedoms, R.S.Q., c. C 12 provides everyone has a right to “respect for his private life”, the infringement of which generates civil liability. See, for a discussion of this provision, Aubry supra note 1. This broad framing captures intrusions and disclosures. Cf. K. Eltis, “Can the Reasonable Person Still be Highly Offended? An Invitation to Consider the Civil Law Tradition’s Personality Rights-Based Approach to Tort Privacy” (2008) 5 Univ. Ottawa L. & Tech. J. 199.

20 Jones supra note 5.

21 Jane Doe supra note 12 at para. 46.

22 Restatement (Second) of Torts, The American law Institute, at paras. 652A (intrusion) and 652B (disclosure).

23 Campbell supra note 1 (disclosures). Months before Campbell was decided, the House of Lords rejected the existence of an intrusion tort in Wainwright v Home Office, [2003] UKHL 53. However, recent dicta suggest courts are moving toward recognizing intrusions. See for example Imerman v Tchenguiz, [2010] EWCA Civ 908, para. 65; Wood v Metropolitan Police Commissioner, [2009] EWCA Civ 414, para. 34; CTB v News Group, [2011] EWHC 1326, para. 23). Moreover, English courts take guidance from the ECrtHR on the minimum content of article 8 of the European Convention of Human Rights (which protects privacy), see McKennitt v Ash, [2006] EWCA Civ 1714, para. 11). The ECrtHR has declared bare intrusions can infringe art. 8 (Wainwright v United Kingdom, [2007] 44 EHRR 40; Reklos v Greece, [2009] EMLR 290). It is therefore probably inevitable that English courts will recognize a bare intrusion tort in the future. See, expressing the same view: M. Warby, N. Moreham and I. Christie, eds., The Law of Privacy and the Media, 2nd (OUP, 2011) at 10.97.

24 Hosking supra note 1 (disclosure); Holland supra note 9 (intrusion).

25 A single cause of action covering intrusions and disclosures was recently recommended by The ALRC supra note 10 at para. 5.78; and NSWLRC supra note 10, ‘Proposal One’, and New South Wales Bill, cl 74 (1). Note the Victoria Law Reform Commission supra note 10, at para. 7.126, recommended that the two actions be kept separate.

26 ALRC ibid at para. 5.84, endorsing C. Hunt, “Privacy in the Common Law: A Critical Appraisal of the Ontario Court of Appeal’s Decision in Jones v Tsige” (2012) 37 Queen’s Law Journal 665, 673.

27 We elaborate this point in the section immediately below.

28 A. McClurg, “Bringing Privacy out of the Closet: A Tort Theory of Liability for Intrusions in Public Places” (1994-5) 73 N. Car. L. R. 989, 1072-3.

29 This problem is addressed in the Restatement supra note 22 at 652A comment (d) (Noting overlap between intrusions and disclosures; while claimant may argue both, there is no double recovery as he “may have only one recovery of damages for invasion of privacy.”) Ontario’s common law actions have not yet addressed the spectre of overlap and double recovery.

30 N. Witzleb, “How Should an Australian Statutory Cause of Action Protecting Privacy be Framed” in D. Dorr and R. Weaver (eds.), The Right to privacy in the Light of Media Convergence: Perspectives from Three Continents (Berlin: Walter de Gruyter, 2012), 243.

31 N. Richards & D. Solove, “Prosser’s Privacy: A Mixed Legacy” (2010) 98 Calif. L.R. 1887, 1924. The authors recommend a unified privacy tort.

32 Restatement supra note 22 at 652C.

33 Privacy MB supra note 14, s. 3(c); Privacy SK supra note 14, s. 3(c); Privacy NFLD supra note 14, s. 4(c).

34 D. Vaver, “What’s Mine is Not Yours: Commercial Appropriation of Personality Under the Privacy Acts of British Columbia, Manitoba and Saskatchewan” (1981) 15 UBC L Rev 241, 254.

35 Privacy BC supra note 14, s. 3. Note that a caricature is included within the meaning of portrait.

36 Privacy MB supra note 14, .s 3(c); Privacy SK supra note 14, s. 3(c); Privacy NL supra note 14, s. 4(c); Privacy BC supra note 14, s. 4(2). For a discussion of these statutes, see: A. Conroy, “Protecting Your Personality Rights In Canada: A Matter of Property or Privacy?”, online: (2012) 1:1 U Western Ontario J Leg Studies 3 ir.lib.uwo.ca/uwojls/vol1/iss1/3".

37 See R. Post, “Rereading Warren and Brandeis: Privacy, Property, and Appropriation” (1991) 41 Case W Res L Rev 647; D. Butler, “A Tort of Invasion of Privacy for Australia?” (2005) 29:2 Melbourne UL Rev 339, 368.

38 See Lenah Game Meats supra note 18, 256.

39 Indeed, for these reasons appropriation was excluded from ALRC’s final recommendation for a statutory tort covering intrusions and disclosures: ALRC supra note 10 at para. 5.73.

40 Privacy BC supra note 14, s. 1.

41 There is no mention of damage in Jones supra note 5, or in Jane Doe supra note 12. The American privacy torts, on which the Ontario actions are modelled, are the same in these respects: Restatement supra note 22, 652A (1), 652D Comment on Clause (a), ss. C; and Restatement 652H (a).

42 Campbell supra note 1.

43 The New Zealand tort is actionable per se (no requirement of actual pecuniary loss or recognised psychiatric harm: Hosking supra note 1 at para. 35), although two judges said disclosures must be “truly humiliating and distressful or otherwise cause harm” at para. 126. Cf. Holland supra note 9 (damage not required).

44 See N. Witzleb, “A Statutory Cause of Action for Privacy? A Critical Appraisal of Three Recent Australian Law Reform Proposals” (2011) Tort L.J. 104, text between fns. 19-20 (noting three recent Australian law commission reports recommended privacy torts be actionable without proof of damage: VLRC supra note 10; NSWLRC supra note 10; Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108, 2008).

45 Restatement supra note 22, 652.

46 Post, ‘Privacy’ supra note 3, 964; E. Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 N.Y.U.L.R. 962, 973-4, 1003; N. Moreham, “Why is Privacy Important? Privacy, Dignity and the Development of the New Zealand Breach of Privacy Tort” in Law, Liberty and Legislation, J. Finn and S. Todd (eds.) (LexisNexis, 2008) 231, 244; U. Cheer, “The Future of Privacy: Recent Legal Developments in New Zealand” (2007) 13 Cant. L. Rev. 169, 169. See also Butler supra note 37, 360-1, noting that in English law if a tort is ‘intentional’ rather than negligent it will be actionable per se because it aligns with trespass rather than action on the case.

47 Privacy BC supra note 14, s. 1(1); Privacy NFLD supra note 14, s. 3(1); Privacy SK supra note 14, s. 2.

48 Peters-Brown v Regina District Health Board [1996] 1 WWR 337, 136 Sask R 126 (SKQB).

49 Peters-Brown, ibid at para 32. There has been little judicial consideration of “wilfulness” under the Saskatchewan statute. Cf. Cole v Prairie Centre Credit Union Ltd, 2007 SKQB 330 (Peters-Brown test of willfullness endorsed).

50 Peters-Brown, ibid at para 35.

51 Peters-Brown, ibid. The court further noted that willful was not made out because the defendant’s circulation of the information was intended to safeguard its own hospital employees and it “did not mean, thereby, to infringe the rights of the plaintiff” (para. 35).

52 Peters-Brown, ibid. The court found the hospital liable in negligence because it was “foreseeable that wider circulation might occur resulting in mental distress” (para. 13). As liability was imposed in negligence, but not under the Privacy Act, it follows that constructive knowledge of a foreseeable privacy invasion flowing from the defendant’s deliberate act is not sufficient to establish willfulness under the Privacy Act.

53 Hollinsworth v BCTV, [1998], 59 BCLR (3d) 121 (CA).

54 Hollinsworth, ibid at para 29.

55 Watts v Klaemt 2007 BCSC 662, at para. 18 (Defendant “knew or ought to have known” surreptitiously recording neighbour’s telephone conversations using scanner violated her privacy. Actions were deliberate, as opposed to accidental, and “it must have been obvious to that he was intercepting extremely personal conversations”); Milner v Manufacturers Life Insurance, 2005 BCSC 1661, at para. 92; St Pierre v Pacific Newspapers Group Inc., 2006 BCSC 241, at para. 49; Wasserman v Hall, 2009 BCSC 1318, at para. 79 (One neighbour knew or ought to have known that training a video camera on another neighbour’s backyard invaded privacy).

56 See Hagan v Drover, 2009 NLTD 160.

57 Privacy MB supra note 14, s. 5(b).

58 Jones supra note 5, at para. 70.

59 Restatement supra note 22, 652B: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person".

60 Jones supra note 5, at para. 72.

61 Jones, ibid, at para. 70.

62 Jones, ibid, at para. 70.

63 Sansregret v The Queen, [1985] 1 SCR 570 at para. 16.

64 Australian Law Reform Commission supra note 44, at 74.164, endorsing the Commonwealth Criminal Code meaning of recklessness, which is substantively the same as the Sansregret ibid. standard just mentioned. Cf. Holland supra note 9 at para. 95 (New Zealand intrusion tort requires “intentional” intrusion, meaning “an affirmative act, not an unwitting or simply careless intrusion”, thus suggesting more than negligence is required).

65 Jane Doe supra note 12 at para. 46.

66 Campbell supra note 1 at para. 21 (Lord Nicholls), para. 134 (Baroness Hale). Witzleb supra note 30, 249, fn. 57, reads Lord Nicholls as contemplating a standard in which even negligent or accidental invasions are actionable, since no fault element is mentioned. The same approach was endorsed by two other law commission reports in Australia: see Witzleb, ibid, 248-9, citing VLRC supra note 10 and NSWLRC supra note 10.

67 Murray v Express Newspapers [2008] EWCA Civ 446, at paras. 35-6.

68 Indeed, of the many theories of privacy, none condition a conceptual claim to privacy on the knowledge of alleged intruders. For a discussion of various leading conceptual accounts of privacy, see: Hunt, ‘Conceptualizing’ supra note 1.

69 E. Bloustein, “Privacy, Tort Law, and the Constitution: Is Warren and Brandeis’ Tort Petty and Unconstitutional As Well?” (1967-8) 46 Texas L.R. 611, 617. For a discussion analogizing privacy torts to other dignitary torts, see C. Hunt, "From Right to Wrong: Grounding ‘Right’ to Privacy in the ‘Wrongs’ of Tort" (2015) 52:3 Alberta Law Review 635.

70 J. Steele, Tort Law: Text, Cases and Materials 2nd ed. (OUP, 2010), 35; J. Goudkamp, “Contributory Negligence and Trespass to the Person” (2011) 127 L.Q.R. 519, 520 (fault in battery tort requires only that act be committed deliberately); Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24, at paras. 98-99 (no requirement that defendant know his acts infringe legal rights).

71 P. Cane, “Mens Rea in Tort Law” (2000) 20 Oxford .J.L.S. 533, 552.

72 It does not follow, however, that the defendant’s knowledge is irrelevant. To the contrary, we suggest it ought to serve—as Murray supra note 67 recognizes—as an important ‘offensiveness factor’ militating in favour of finding a valid REP. We elaborate on this point in Part Two, below.

73 N. Moreham, “Privacy in the Common Law: A Doctrinal and Theoretical Analysis” (2005) L.Q.R. 628, 648.

74 British Columbia, British Columbia Law Institute, Report on the Privacy Act of British Columbia, Report No 49 (Vancouver: BCLI 2008), 25.

75 H. Delany and E. Carolan, The Right to Privacy: A Doctrinal and Comparative Analysis (Thompson Round Hall, 2008), 301, agree with this view. English law may be moving in this direction. It was recognized by the UK Supreme Court that no actionable breach of confidence will arise where the defendant genuinely did not know the information was confidential: Vestergaard Frandsen v Bestnet Europe, [2013] UKSC 31, at paras. 22-25. Recall that the English privacy action is anchored in equitable breach of confidence, and hence it may be that this defense applies to privacy claims as well.

76 Moreham, ‘Doctrinal,’ supra note 73, 648, concedes such cases will be in the minority; similarly, see Bloustein, ‘Tort’, supra note 69.

77 Witzleb, ‘Statutory’ supra note 44, text between fns. 75-6, (recommending against placing burden on claimant to prove defendant’s knowledge of former’s REP because this causes practical difficulties).

78 Privacy BC supra note 14, s. 1(1); Privacy SK supra note 14, s. 2; Privacy NFLD supra note 14, s. 3(1); Privacy MB supra note 14, s. 2(1).

79 Indeed, the three law commission reports emanating from Australia do not appear to engage with this concept either: supra note 10.

80 Davis v McArthur (1970), 10 DLR (3d) 250 (BCSC), at para. 13.

81 Hollinsworth,, supra note 53, at para. 30.

82 Peters-Brown, supra note 48, at para. 35.

83 Rideout v Health Labrador Corp, 2005 NLTD 116, at paras. 54-58 (application to strike privacy claim for failing to disclose and arguable case; not plain and obvious that action would fail; did not engage with this issue any further).

84 Davis v McArthur (SC), supra. at para. 12 (also rejecting argument Private Investigator’s Licensing Act, under which defendant was operating, could amount to lawful excuse or claim of right; it is regulatory in nature and does not convert unlawful act into lawful one, at paras. 17-8); latter finding affirmed in Davis (BCCA) supra note 80, at para. 10.). cf Milner supra note 55, at para. 92 (no claim of right where defendant insurance investigator surreptitiously filmed plaintiff’s daughter in state of undress in family home through open window; investigation of mother’s potential malingering under policy could not provide claim of right to photograph daughter; no determination of ‘claim of right’ in relation to mother, as she had no REP for other reasons).

85 Watts supra note 55, at para. 19.

86 Wasserman supra note 55.

87 Wasserman, ibid at paras. 82-4 (court also suggested in obiter that this would have been justified as incidental to protecting his property had the cameras been focused solely on his own yard).

88 Hollinsworth, supra note 53, at para. 31.

89 Peters-Brown, supra note 48, at para. 35 (claim of right insulated hospital from liability, despite information somehow leaking beyond hospital to the plaintiff’s workplace at a correctional centre).

90 St Pierre v Pacific Newspaper Group Inc., 2006 BCSC 241.

91 St-Pierre, ibid at para. 50.

92 St Pierre, ibid.

93 Davis v McArthur (BCSC) [1969] BCJ No 249, at para. 13.

94 R v Howson [1966] 3 C.C.C. 348, 55 D.L.R. (2d) 582 (Ont. C.A.); endorsed in R. v Watson (1999) 176 Nfld & PEIR 263.

95 St Pierre, supra note 90, at para. 50.

96 See R v Charters, 2007 NBCA 66, at para. 11; Watson supra note 94 (“as it relates to law it is the misunderstanding of the law respecting private rights”… “It may be a mere belief that the conduct was lawful”, citing Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961) p. 324; cf R. a DeMarco (1973), 13 C.C.C. (2d) 369 (Ont. C.A.) (“Right should be construed broadly….The use of the word cannot be said to exclude a legal right”) at p. 351-7. Demarco was cited by the SCC in R v. Simpson, 2015 SCC 40, at para. 31. Note that only mistakes of civil law, as opposed to the application of criminal law, qualify under the doctrine because it operates as a limited exception to s.19 of the Criminal Code which provides“Ignorance of the law by a person who commits an offence is not an excuse for committing that offence”. To permit mistakes of criminal law to qualify as defences under colour of right would render s.19 a nullity which could not have been Parliament’s indent: see Watson supra ibid.

97 Bracken v Vancouver Police Board et al., 2006 BCSC 189, at para. 56.

98 The defendant-hospital was not under a mistake of fact at all; rather, it circulated the plaintiff’s private medical information internally under the belief it had a legal right to do so to protect its employees: Peters-Brown, supra note 48, at para. 35.

99 If limited to mistakes of fact, the most fertile ground for ‘claim of right’ to succeed would likely be situations in which the defendant honestly believes the claimant impliedly consented to the intrusion. Courts must be careful however to not move from that correct approach to one that mixes implied consent with notions of ‘waiver’ anytime the claimant can foresee the risk of intrusion. Toward the end of this section we elaborate on the problems with a waiver approach under the heading ‘Intrusions in Public Places: The Seclusion Requirement’.

100 Each provincial Privacy Act has a discrete public interest defense: Privacy BC supra note 14 s. 3(a); Privacy MB supra note 14 s. 5(f)(i); Privacy SK supra note 14 s. 4(2)(a); Privacy NFLD supra note 14 s. 5(2)(a).

101 This refers to publishing a ‘matter of legitimate public concern’ or ‘proper public interest’: Restatement supra note 22, 652D The Restatement is vague, and susceptible to multiple interpretations. Contrast 652D Comment (d) (newsworthy defined as a ‘matter of legitimate public concern’ and ‘proper public interest’) with Comment (h) (newsworthy is a matter of ‘common decency’ and ‘community mores’). This ambiguity has spawned five different judicial approaches to ‘newsworthiness.’ See G. Dendy, “The Newsworthiness Defence to the Public Disclosure Tort” (1996-7) 85 Kentucky L.J. 147, 157-63; D. Green, “Almost Famous: Reality Television Participants as Limited-Purpose Public Figures” (2003-4) 6 Vand. J. Ent. L. & Pract. 94, 97-8.

102 D. Zimmerman, “Requiem for Heavyweight: A Farewell to Warren and Brandeis’s Privacy Tort” (1983) 68 Cornell L. Rev. 291, 353.

103 D. Solove, “The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure” (2003) 53 Duke L.J. 967, 1001-2, citing Heath v Playboy Enterprises Inc. 732 F. Supp. 1145 (S.D. Fla. 1990); Wagner v Fawcett Pub., 307 F.2.d 409 (7th Cir. 1962).

104 Zimmerman, Supra. Note 102, 353; J. Jurata, “The Tort that Refuses to Go Away: The Subtle Re-emergence of Public Disclosure of Private Facts” (1999) 36 San Diego L. Rev. 489, 505; cf A. Gadja, “Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press” (2009) 97 California L.R. 1039, 1061-3 (Citing cases). For a discussion of how this approach has destroyed the protections of the disclosure tort, see Zimmerman ibid, and D. Anderson, “The Failure of American Privacy Law” in Basil Markesinis, ed, Protecting Privacy (Oxford: Oxford University Press, 1999). Of course, the press has a wide (and self-interested) view as to whether publication is in the public interest: See C. Munro, “Self-Regulation and the Media” (1997) P.L. 6.

105 Privacy MB, supra note 14, s. 3(d); Privacy SK supra note 14, s. 3(d); Privacy NFLD supra note 14, s. 4(d). The BC Privacy Act supra note 14 does not have this provision.

106 See Murray supra note 67 at paras. 30-31 (reviewing the various House of Lords speeches in Campbell supra note 1 and concluding that a prima facie claim arises once a reasonable expectation of privacy exists in relation to the material disclosed).

107 ALRC supra note 10 at para. 5.46.

108 Jane Doe supra note 12, at para. 46 (referring to giving “publicity’ and the matter being “publicized”); Hosking supra. Note 1, at para. 117 (“publicity” must be given to facts in relation to which the claimant has a REP).

109 Restatement supra note 22, 652D Comment (a) (noting, further, that “it is not an invasion of the right of privacy…to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons”).

110 R. Gavison, “Privacy and the Limits of Law” (1980) 89:3 Yale LJ 421.

111 On Gavison’s considerable influence, see D. Solove, “Conceptualizing Privacy” (2002) 90:4 Cal L Rev 1087 (“Gavison . . . develops the most compelling conception of privacy as limited access”, 1104).

112 See Gavison, supra. Note 110, 429.

113 Moreham, ‘Doctrinal’ supra note 73, 636.

114 For a discussion, with sources, see Hunt, ‘Conceptualizing’ supra note 1; cf R. v. Dyment [1988] 2 S.C.R. 417, in which La Forest J. characterized the s. 8 Charter protection of privacy as "[g]rounded in a man's physical and moral autonomy" and stated that "privacy is essential for the well-being of the individual”. This passage was endorsed by Sharpe JA in Jones supra note 5 at para. 40 as being equally applicable to the privacy tort context.

115 Campbell supra note 1 at para. 51.

116 A. F. Westin, Privacy and Freedom (1970), 7.

117 R v Tessling, [2004] 3 SCR 432, at para. 23. Notably, Justice Sharpe endorsed this statement in the tort context as reflecting the privacy interest the plaintiff had in her banking records: Jones supra note 5 at para. 41.

118 Jane Doe supra note 12 at para. 9.

119 Interestingly, the Manitoba Legislature recently passed The Intimate Image Protection Act C.C.S.M. c.187, which makes it a tort to “distribute” intimate images of another without consent. There is no publicity requirement.

120 Privacy MB, supra note 14, s. 3(a); Privacy NFLD, supra note 14, s. 4 (a); Privacy SK, supra note 14, s. 3 (a).

121 Of course, because the overall test is one of reasonableness, the plaintiff’s location at the time of the alleged invasion is an important factor in assessing his or her privacy interest. We elaborate on this point in Part Two, below, when discussing ‘Location’ under the REP test.

122 Milner supra note 55.

123 Milner, ibid at para. 87.

124 Druken v RG Fewer and Associates Inc (1998), 171 Nfld & PEIR 312.

125 Druken, ibid at para 43.

126 See W. Prosser, “Privacy” (1960) 48:3 California Law Review 383 citing Chappell v Stewart, 33 Atl 542 (1896) (summarizing the American approach that generally finds “[o]n the public street, or in any other public place, the plaintiff has no right to be alone…”).

127 Restatement supra note 22, 652.

128 Restatement ibid. 652B(c); Fogel v Forbes, Inc, 500 F Supp 1081 (ED Pa 1980) ("this tort does not apply to matters which occur in a public place or a place otherwise open to the public eye" at 1087). For a discussion of American cases that have rejected intrusions into public places and into publically accessible documents, see: E. Paton-Simpson, "Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places" (2000) 50:3 UTLJ 305; Elizabeth Paton-Simpson, "Private Circles and Public Squares: Invasion of Privacy by the Publication of 'Private Facts'" (1998) 61:3 Mod L Rev 318. The Restatement does provide that it may be possible to have a privacy interest in some matters, despite being in a public place, where this information is not open to public gaze (such as one's underwear) (Restatement, 652B(c)). This note has generated a few exceptional cases (see both Paton-Simpson articles, ibid., for a detailed examination).

129 Paton-Simpson, ‘Paranoid,’ ibid, at fn. 113: “American law excludes from the scope of privacy protection anything that can be seen from a public place,” citing Mark v Seattle Times, 635 P.2d 1081 (Wash. 1981); Aisenson v American Broadcasting Co. Inc, 220 Cal.App.3rd 146 (1990).

130 Restatement supra note 22, 652D(b) (no liability where publicity is given to information already public, including public records or gathered in a public place); Gill v Hearst Publishing Co, 40 Cal (2d) 224 (1953) (intrusion and disclosure torts failed because photos were taken while the claimants sat together affectionately on a bench in a public market). Again, there are a few exceptional cases where such ‘public’ information can still be private. For a discussion, see Paton-Simpson, ‘Paranoid’ supra note 128; Paton-Simpson, ‘Circles’ supra note 128.

131 Jones supra note 5, at para. 70.

132 Jones, ibid at paras. 65, 70, 72, 89.

133 Jones, ibid at para. 70.

134 Restatement supra note 22, 653B Comment (b) (listing private baking records).

135 Jane Doe supra note 12, at para. 46. The information at issue—“privately shared” intimate sexual images—was such that Stinson J did not have to address the extent to which the Restatement limits on public information may apply.

136 Holland supra note 9.

137 Holland ibid, at paras. 94-5.

138 Similarly, the ALRC’s recommended tort is labelled “intrusion on seclusion” (ALRC supra note 10, at para. 5.17), and is modeled on Holland ibid (ALRC at para. 5.35) The ALRC contemplated that a REP can exist in a public place, although generally such expectations will be diminished (ALRC at para. 6.45).

139 Hosking supra note 1 at para. 117.

140 Hosking ibid, at paras. 119, 164; cf Television New Zealand v Rogers, [2007] 1 NZLR 156, at paras. 63, 100, 105.

141 Hosking supra at para. 164; cf Andrews v Television New Zealand, [2009] 1 NZLR 220, at paras. 62-5 (car accident filmed and broadcast; generally no REP as event was public; but REP was exceptionally established because of intrusive detail of footage).

142 The Grand Chamber of the ECrtHR rejected the German rule that public figures must retreat to a “secluded place out of the public eye” to claim a privacy invasion, stating that the “criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance”: Von Hannover supra note 1, at paras. 54, 75. As English courts take guidance from Strasbourg on the minimum content of privacy rights, there is little chance they will adopt a seclusion requirement if and when intrusions are firmly recognized in England.

143 Murray supra note 67; cf Weller & Ors v Associated Newspapers Ltd. [2015] EWCA Civ 1176 (REP found in anodyne photos taken and published of claimant children while on public street).

144 Regina (Wood) supra note 23 at para. 34.

145 See Hunt, ‘Common Law’ supra note 26; cf N. Moreham, “Privacy in Public Places” (2006) 65(3) Cambridge L.J. 606; Paton-Simpson, ‘Paranoid’ supra note 128; Paton-Simpson ‘Circles’ supra note 128; McClurg, supra note 28.

146 See McClurg, ibid, 025–26; 1039. The author traces the waiver premise, underlying the seclusion requirement in the Restatement supra to Dean Prosser’s article (Prosser, supra). Prosser was the principal draftsmen of the Restatement (McClurg, ibid, 1036, fn. 208); Paton-Simpson, ‘Paranoid’ ibid. (“[t]he courts have deduced from this awareness (namely, that the possibility of a privacy invasion is much greater outside the home than inside it) that the failure to stay indoors or take other effective precautions impliedly signifies waiver of the right to privacy and consent to any intrusions or publicity, however unlikely”, 332). Above, we suggested ‘claims of right’ could capture a defendant’s honest but mistaken belief that the plaintiff has consented to the very intrusion at issue. That rationale is much narrower than an approach, discussed here, that imputes consent to the victim anytime they act in circumstances where a violation is foreseeable: see Paton-Simpson, ‘Paranoid’ ibid, at 333.

147 J. Craig, “Invasion of Privacy and Charter Values: The Common Law Tort Awakens” (1997) 42 McGill Law Journal 355, 396 (labelling this the “[k]nowledge [of risk of invasion] equals consent approach”); cf Paton-Simpson, ‘Paranoid’ ibid, 332.

148 Paton-Simpson, ‘Paranoid ibid‘, 338 (asserting that to say a person impliedly consents to that which they foresee is “ridiculous”); cf Craig supra, 396. See also D. Feldman, "Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty" (1994) 47:2 Curr Legal Probs 41 (“[t]o hold that one loses privacy rights when using a telephone (because they could foresee the possibility of tapping) is analogous to saying that one loses rights of property [to] ... one's baggage when one takes it on an aeroplane, because we all know that bags are sometimes lost or stolen in transit” 67).

149 RVF Heuston and RA Buckley, Salmond and Heuston on the Law of Torts (20th edn, Sweet & Maxwell 1996) 489 (“Mere knowledge of an impending wrongful act, or the existence of a wrongfully caused danger, does not in itself amount to consent, even though no attempt is made by the plaintiff to prevent or avoid that act or danger”).

150 See S. Morris Engel, With Good Reason: An Introduction to Informal Fallacies, 3d ed (New York: St Martin's Press, 1986) (“[because our language is full of opposites, the tendency to bifurcate is common. We are prone to people the world with 'haves' and 'have-nots,' the 'good' and the 'bad,' the 'normal' and the 'abnormal'-forgetting that between these extremes lie numerous gradations, any of which could serve as further alternatives to an either/or polarity” 135); cf Paton Simpson ‘Circles’ supra note 128, 327; Solove, ‘Conceptualizing’ supra note 111,1109.

151 Lenah Game Meats supra note 18, at para. 42.

152 Jones supra note 5, at para. 40; Campbell supra note 1, at para. 51.

153 For a detailed discussion with many sources, see Hunt ‘Conceptualizing’ supra note 1.

154 S. Benn, ‘Privacy, Freedom and Respect for Persons’ in J Roland Pennock and John W Chapman (eds), Nomos XIII: Privacy (Atherton Press 1971), 10–11.

155 H. Gross, ‘Privacy and Autonomy’ in J Roland Pennock and John W Chapman (eds), Nomos XIII: Privacy Atherton Press 1971), 172-4.

156 Aubry supra note 1, at paras. 21, 52.

157 Privacy BC supra note 14, s. 1(2); Privacy NFLD supra note 14, s. 3(2).

158 Privacy MB supra note 14, s. 2(1). Note that the Saskatchewan Privacy Act does not mention either reasonableness or that invasions must be substantial.

159 Jones supra note 5 (intrusion), at para. 70; Jane Doe supra note 12 (disclosure) at para. 46.

160 Holland supra note 9 (intrusion) at paras. 94, 96; Hosking supra note 1 (disclosure) at para. 126. Chief Justice Elias of the New Zealand Supreme Court has subsequently expressed some reservations about the highly offensive requirement in Hosking, suggesting, without deciding, that a simple REP test may be preferable: Rogers supra note 140, at para. 25.

161 Restatement supra note 22, 652B, 652D.

162 Jones supra note 5, at para. 71.

163 Hosking supra note 1, at paras. 126, 255.

164 Jones supra note 5, at para. 72.

165 VLRC Report supra note 10, Recommendations #25 and #26.

166 ALRC, For Your Information: Australian Privacy Law and Practice, supra note 44, Recommendation 74-1.

167 ALRC Report ibid, at para. 74.136.

168 ALRC supra note 10, at paras. 6.22, 8.2, 8.17, 8.24 (‘serious’ means ‘not trifling’ and is to be assessed on an objective standard; typically, invasions will be serious where a reasonable person would be likely to suffer emotional distress from the intrusion).

169 Campbell supra note 1 at para. 135 (Baroness Hale), cf Lord Nicholls at para 21.

170 Murray supra note 67, at paras. 35-36.

171 Murray, ibid.

172 NSW Bill supra note 10, cl 7493)(a)(ii).

173 ALRC supra note 10, at paras. 622; 8.2.

174 Hunt, ‘Common Law’ supra note 26.

175 Hosking supra note 1, at para. 256.

176 Bloustein, ‘Tort’ supra note 69, 615 (normative reasonableness standard is capable of distinguishing between flagrant and trivial breaches by the defendant); S. Warren and L. Brandeis, “The Right to Privacy” (1890) 4 Harvard. L.R. 193, 214-5 (privacy tort should only bite at “flagrant breaches of decency and propriety” as assessed by the “reasonableness or unreasonableness” of an act in light of the “varying circumstances of each case.”

177 NSWLRC supra note 10 at paras 5.5, 5.9-5.11.

178 Witzleb, ‘How’ supra note 30, 246 (highly offensive and REP questions overlap: “Where conduct is likely to cause substantial offence, it can be reasonably expected that the defendant will not engage in it and respect the plaintiff’s privacy”); cf ALRC supra note 10, at para 6.22 (offensiveness of intrusion or disclosure should be considered as part of REP test because “it is more reasonable to expect privacy where a breach of privacy would be considered highly offensive”).

179 Witzleb, ‘How’ supra, 246. Relatedly, it sometimes leads courts to focus on the wrong issue, by asking not whether privacy was invaded but whether or not the victim was portrayed in a negative light, which has nothing to do with questions of privacy from a conceptual standpoint: see, for a discussion with cases: Moreham, ‘Important’ supra note 46, 241-43.

180 Moreham, ‘Important’ ibid, 250; cf Boustein, ‘Dignity’ supra note 46, 974 (dignity undermined “whether or not [invasions] cause emotional trauma”); Post, ‘Privacy’ supra note 3, 964 (invasions of privacy “intrinsically harmful” regardless of actual distress suffered). For a discussion of the dignity basis of privacy rights, with many sources, see Hunt, ‘Conceptualizing’ supra note 1.

181 Moreham, ‘Important’ ibid, 243-44.

182 The BC Privacy Act supra (originally passed in 1968, and upon which the other provincial regimes are based), deliberately left ‘privacy’ undefined to facilitate maximal flexibility by courts to develop the jurisprudence on a case by case basis: see BCLI Report supra note 74, 5.

183 Privacy BC supra note 14, s. 1(2); Privacy SK supra note 14, s. 6 (1); Privacy NFLD supra note 14, s. 3(2). Manitoba, in contrast, omits this statement, and instead conditions invasions on being “unreasonable” and “substantial”: Privacy MB supra note 14, s. 2(1).

184 For instance, see Getejanc v. Brentwood College Association (2001), 6 C.C.L.T. (3d) 261 (BCSC) at para. 18; Milner supra note 55, at para. 88; Heckert v 5470 Investments Ltd, 2008 BCSC 1298 at para 81; Bigstone v St. Pierre, 2011 SKCA 34, at para. 55 (noting that REP test contemplated by Saskatchewan Act, but cautioning it should not be equated with REP test in Charter jurisprudence). The BCLI Report, supra note 74, 9, has likewise interpreted the B.C. Privacy Act as contemplating a REP test.

185 Pearlman v Critchley, 2011 BCSC 1479 at para. 28; Davis (SC) supra note 80 at para. 18.

186 Murray supra note 67, at paras. 21-36. As virtually every English privacy case has emphasized, this is highly fact-dependent and “all depends upon the circumstances” (Murray, at para. 56). For subsequent cases treating Murray as the framework test, see: LNS v Persons Unknown [2010] EWHC 119, at para. 55; Mosley v News Group Newspapers Ltd [2008] EWHC 1777, at para.7; Regina (Wood) supra note 23 at paras. 24-5.

187 Hosking supra note 1 at para. 117 (disclosure); Holland supra note 9 at para. 94 (intrusion).

188 VLRC supra note 10 Recommendation 25, 26; ALRC supra note 10 Recommendation 6-1; NSWLRC supra note 10, 20-26.

189 See Solove, ‘Conceptualizing’, supra note 111, 26-146; for a detailed review of leading theorists developing contextual accounts, see Hunt, ‘Conceptualizing’ supra note 1.

190 Butler supra note 37, 370.

191 See the discussion above under the heading ‘Intrusions in Public Places: The Seclusion Requirement’.

192 Warby et al., supra note 23, 229.

193 NSWLRC supra note 10, at para. 5.4.

194 NSWLRC ibid, at para. 5.5 (citing High Court of Australia Justice Callinan’s extra-judicial view that determining the existence of a right of privacy is a “classic jury question”).

195 Campbell supra note 1 at para. 135.

196 R v Tessling, 2004 SCC 67 at paras. 19, 32.

197 Regina (Wood) supra note 23, at para. 25 (reasonable expectations of privacy “operate as a factor limiting the scope of the article 8 right [to privacy]”).

198 Delany and Carolan supra note 75, 299 (objective check of reasonableness desirable because it is “socially unacceptable to enforce an individual’s preference for privacy in all situations”); cf Moreham, ‘Doctrinal,’ supra note 73, 643-4.

199 Delany and Carolan, ibid, 306.

200 Anderson, supra note 104, 150; cf Solove, ‘Conceptualizing,’ supra note 111, 1142. cf A. Cheung, “Rethinking Public Privacy in the Internet Era: A Study of Virtual Persecution by the Internet Crowd” (2009) 2 J. Media. L. 191, 201-2. This reasoning was followed in the American case Schulman v W Group Productions, 18 Cal. 4th 200 (1998) (claimants filmed in the aftermath of a car accident; claim for invasion of privacy rejected because tabloids frequently film such incidents, and hence complaining about this was unreasonable).

201 See Paton-Simpson, ‘Paranoid,’ supra note 128, 340; Delany and Carolan, supra note 75, 307; NSWLRC supra note 10, at para. 5.5.

202 NSWLRC ibid, at para. 5.5 (concluding the above criticisms are “misplaced”).

203 Tessling supra note 196, at para 42 (“[E]xpectation of privacy is a normative rather than a descriptive standard”).

204 Bloustein, ‘Tort’ supra note 69, 615; cf Warren and Brandeis, supra note 176, 214.

205 There is extensive Canadian jurisprudence applying REPs in the context of s. 8 of the Charter. However, there have been judicial cautions, rightly in our view, to avoid simply transporting the Charter REP analysis into the tort context. In Aubry supra note 1, Lamer CJ (dissenting, but not on this point) stated it is “wrong to define the scope of the right to privacy between citizens solely on the basis of the decisions relating to s.8” and that “the right to privacy can have a different scope in private law” (para. 9). His Lordship suggested that sometimes the Charter approach results in broader protection than a tort approach would, because “there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state…will permanently record those activities on videotape”. cf Bigstone supra note 184, in which Ottenbreit JA of the Saskatchewan Court of Appeal observed that Charter REPs are “not congruent with the ‘privacy’ or an ‘expectation of privacy’, the violation of which is actionable under the [Saskatchewan] Act” (para. 27). In light of these cautions, it is more fruitful, when examining REPs under Canada’s statutory torts, to look to developments in other common law counties analysing civil claims than it is to drawn on the public law Charter jurisprudence, which, by virtue of that very different context, give rise to a host of other policy considerations. Nevertheless, the s.8 jurisprudence is not entirely irrelevant, and some courts have drawn on it to adjudicate privacy torts: see, for example, Heckert supra note 184, at paras. 78, 81.

206 Murray supra note 67, at paras. 35-6.

207 Bloustein, ‘Tort’ supra note 69, 615 (normative reasonableness standard is capable of distinguishing between flagrant and trivial breaches, by having regard to conduct of both plaintiff and defendant); ALRC supra note 10, at para. 6.22 (“It is more reasonable to expect privacy, where a breach of privacy would be considered highly offensive”; recommending considerations of offensiveness be considered under REP test for this reason).

208 Murray supra note 67, at para. 50 (court also noted child’s young age, and importance of preventing paparazzi targeting to discourage intrusions in the future, at paras. 50, 56).

209 For example, s 1(3) of the B.C. Privacy Act provides that “regard must be given to the nature, incidence and occasion of the [defendant’s] act or conduct”: Privacy BC supra note 14; likewise, see Privacy SK supra note 14, s. 6(1); Privacy NFLD supra note 14, s. 3(2). The Manitoba legislation requires consideration of these factors when assessing damages: Privacy MB supra note 14, s. 4(2).

210 Getejanc supra note 184, at para. 16; Milner supra note 55, at para. 74; likewise, the BCLI interprets the BC Privacy Act as requiring courts to assess a privacy interest, and to then consider whether the defendant’s act or conduct constituted a violation of it, having regard to his motives and purpose: BCLI Report supra note 74, 9-10.

211 Privacy MB supra note 14, s. 3; Privacy SK supra note 14, s.3; Privacy NFLD supra note 14, s. 4 (each listing surveillance, watching, following or besetting). In Bigstone supra note 184, at para. 23, the Court of Appeal for Saskatchewan recently observed that these examples are “not of the types of privacy but of prohibited acts which infringe privacy”).

212 NSWLRC supra note 10, at paras. 5.9-5.10.

213 ALRC supra note 10, at paras. 6.22, 8.2.

214 Witzleb, ‘Statutory’ supra note 44, text between fns. 58-9; to similar effect, see ALRC supra note 10, at para. 6.22.

215 See Gerety, supra note 2, 236; Parker, supra note 2, 276-7 (speaking of shared intuitions); Scanlon, supra note 2, 316 (speaking of “explicit social rules” of privacy); Parent, supra note 2, 306-7 (defining privacy with reference to cultural norms and social practices); cf Restatement supra note 22, 652D, comment (a): “The protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place... and to the habits of his...fellow citizens. Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of community life of which he is a part.”

216 Post, ‘Privacy’ supra note 3.

217 E. Goffman, The Nature of Deference and Demeanour, in Interaction Ritual: Essays on Face to Face Behaviour 47 (1967), cited in Post, ‘privacy’ ibid. 962.

218 Goffman supra quoted in Post ‘Privacy’ ibid, 962.

219 Post, ‘Privacy’ ibid, 963.

220 Post, ‘Privacy’ ibid, 962.

221 Post, ‘Privacy’ ibid, 963.

222 Post, ‘Privacy’ ibid, 964, 965-6; 985-6; cf Bloustein, ‘Dignity’ supra note 46, 1000-5 (advancing similar argument, emphasizing both the intrinsic and wider social values served by enforcing rights to privacy and vindicating personal dignity).

223 Post, ‘Privacy’ supra note 3, 972-3.

224 Post, ‘Privacy’, ibid, 973-4. Post’s argument here tracks the influential argument by Reiman: J. Reiman, “Privacy, Intimacy, and Personhood” (1976) 6 Phil. and Pub. Aff. 26.

225 Post, ‘Privacy’ ibid, 984-5.

226 Post, ‘Privacy’ ibid, 961.

227 Post, ‘Privacy’, ibid, 962.

228 Warby et al., supra note 23, 233; Douglas v Hello! Ltd (No. 3) [2006] QB 125 (CA), 157.

229 R v Cole, 2012 SCC 53, at para. 46.

230 Cole ibid, at para. 45.

231 In Bigstone supra note 184, Ottenbreit JA observed that Charter REPs are “arguably not congruent with the ‘privacy’ or an ‘expectation of privacy’, the violation of which is actionable under the [Saskatchewan] Act” (para. 27). His Lordship suggested that in certain instances tort privacy is “more broad and less intimate” than Charter concepts of privacy. Even privacy claims in the Charter context can arise in relation to information not characterized as biographical; see C. Hunt and M. Rankin, “Anonymity, the Rule of Law and the Shrivelling of the Biographical Core” (2015) 61:1 McGill Law Journal 193.

232 Lenah Game Meats supra note 18, at para. 42; cf Jones supra note 5, in which Sharpe JA stated, in relation to the types of information covered by Ontario’s common law intrusion tort: “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.” (para. 72).

233 S v United Kingdom (2008) 48 EHRR 1169, at para. 66 (“Health is an important element of private life”), cited with approval in Regina (Wood) supra at para. 18; Peters-Brown supra note 48 (information about having infectious disease obviously private); Hynes v Western regional integrated Health Authority, 2014 NLTD(G) 137 (certification of class action under privacy tort; unauthorized accessing of generic health information of 1000 plus individuals).

234 Campbell supra note 1, at paras. 94-5 (treatment for drug addiction “easily identifiable as private”).

235 Mosley supra 186, at para. 100 (“people’s sex lives are generally to be regarded as their own business”).

236 LNS v Persons Unknown [2010] EWHC 119 (QB).

237 S v United Kingdom supra 233, at para 66, citing Bensaid v United Kingdom (2001) 33 EHRR 205.

238 McKennitt supra note 23 (intimate conversations passing between long-time friends); Nesbitt v Neufeld, 2010 BCSC 1605 (personal email correspondence between friends obviously private; breach where third party takes and discloses this correspondence to others); Watts v Klaemt, 2007 BCSC 662 (invasion of privacy where defendant intercepts phone call between spouses having obviously private conversation about their relationship).

239 Warby et al, supra note 23, 249: “Family financial affairs are private,” citing Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315; BMP Globa Distribution Inc. v Bank of Nova Scotia, 2005 BCSC 1901 (release of financial information to third parties is breach of privacy); Jones supra (accessing plaintiffs banking records on internal bank computer dozens of times is breach of privacy, despite no disclosure to anyone else).

240 Browne v Associated Newspapers Ltd. [2007] EWCA Civ 295 at para. 34 (business and commercial information, intuitively outside art. 8’s privacy protection, but fell within art. 8 privacy because it was communicated in confidence).

241 Jane Doe supra note 12 (graphic sexual images texted to boyfriend; breach when he disclosed without consent).

242 TKL v TMP, 2016 BCSC 789 (secret video camera in bathroom capturing plaintiff naked); cf LAM v JELI 2008 BCSC 1147 (invasion of privacy where defendant installed camera inside plaintiff’s bathroom).

243 Dudgeon v United Kingdom (1984) 4 EHRR 149; Delany and Carolan, supra note 75, 335.

244 McKennit v Ash [2005] EWHC 3003, affirmed in McKennitt supra note 23.

245 Campbell supra note 1, at para. 154.

246 Griffin v Sullivan, 2008 BCSC 827, at para. 84.

247 Note that the SCC has recently held that online anonymity is an aspect of privacy falling within s.8 of the Charter: R v Spencer, 2014 SCC 43; for analysis, see Hunt and Rankin, supra note 231.

248 See Delany and Carolan supra note 75, 316. The importance of ‘form’ and ‘location’ are discussed as REP factors below.

249 We discuss the ‘values’ point just mentioned in the following paragraphs, and the ‘offensiveness’ point further below under the heading ‘defendant-oriented offensiveness factors’.

250 OBG v Allan [2008] 1 A.C. 1 (UKHL) at para. 291.

251 See McClurg, supra 1041; Paton-Simpson, ‘Paranoid’ supra 328; J. Moore, “Traumatised Bodies: Towards Corporeality in New Zealand’s Privacy Tort Law Involving Accident Survivors” (2011) New Zealand Univ. L.R. 386, 395.

252 McClurg, ibid, 1042.

253 McClurg, ibid (“We know the Mona Lisa smiles with her eyes because we can study her famous portrait”).

254 Douglas v Hello! (No.3) [2005] EWCA Civ 595, at para. 106.

255 Mosley v United Kingdom (2011) 53 EHRR 30, at para. 115, and cases cited therein.

256 McClurg, supra note 28, 1042-3. In Reklos supra note 23, the ECrtHR found privacy invasion by taking photograph without consent; doing so deprived the subject of the ability to control the subsequent dissemination of this image, which is an “essential attribute of personality” (at paras. 38-40). cf McClurg, ibid, 1041 (photographs are offensive to one’s personality because they “allow... the invader to, in effect, take part of the subject with him” and potentially disclose it in the future).

257 Moreham, ‘Public’ supra note 145, 619-20.

258 In Campbell supra note 1, supra Lord Hoffman said the core values underpinning privacy are the “protection of human autonomy and dignity” (para. 51); see generally: Reiman supra note 224; Benn supra note 154.

259 In Campbell, ibid, Lord Nicholls observed that “[a] proper degree of privacy is essential for the [well-being] and development of an individual”. cf C. Fried, “Privacy” (1968) 77:3 Yale LJ 475 at 482. For detailed discussion of the values underpinning privacy, organized into deontological and instrumentalist categories, see Hunt ‘Conceptualizing’ supra note 1.

260 Murray supra note 67 at para. 55. The court interpreted Von Hannover v Germany supra note 1 as following similar reasoning, because in that case paparazzi harassment of Princess Caroline interfered with her “private recreation time intended to be enjoyed in the company of family and friends” and “can adversely affect the exercise of such social activities.”

261 Von Hannover supra note 1 at para. 50.

262 Privacy MB supra note 14, s. 3(d); Privacy SK supra note 14, s.3(d); Privacy NFLD supra note 14, s. 4(d). This provision is omitted from the BC Privacy Act supra note 14.

263 Privacy MB ibid, 3(b); Privacy SK ibid, s 3(b); Privacy NFLD ibid, 4(b). cf Constant-Daniels (Litigation Guardian of) v Tournier, 2014 SKQB 353,at para. 33 (student generally has REP in cell phone and texts; teacher may confiscate and read only if has genuine and reasonable fear for security or safety of school or other students).

264 ALRC supra note 10 at paras. 6.57-6.61.

265 In England the Court of Appeal has observed that the form the material was in when unwanted access occurred may itself determine a valid REP: Douglas v Hello! Ltd (No. 3) [2006] QB 125 (CA), 157; cf HRH Prince of Wales v Associated Newspapers [2008] Ch. 57 (CA) at para. 36 (Prince Charles’ personal travel diary); cf Fillion v Fillion, [2011] BCSC 1593 (breach of privacy where defendant took copy of plaintiff’s will; form itself clearly private; no suggestion that banal contents could displace REP).

266 Nesbitt v Neufeld, 2010 BCSC 1605 (breach of privacy where ex-husband takes ex-wife’s email correspondence between her and her friends and forwards to third party; private form—email—rather than nature of contents drive REP analysis) at paras 97-95; Pacific Northwest Herb Corp v Thompson, [1999] BCJ No 2772 (REP established in personal email correspondence, using company issued computer, between plaintiff and his family, and plaintiff and his lawyer).

267 Delany and Carolan supra note 75, 331, citing L v L [2007] EWHC 140 (REP established regarding contents of password protected laptop); cf YYV v YYR [2011] EWHC 274 (QB) (REP exists in personal email sent to defendant accidentally).

268 Cole supra note 229, at para. 47 (concluding computer searches fall within ‘biographical core’).

269 Browne supra note 240, at paras. 29-30 (existence of confidential relationship is of “considerable importance” when assessing REP); NSWLRC supra note 10, at para. 5.31 (existence and nature of relationship important factor when assessing REP); cf Cole supra note 229 at para. 46 (in Charter context, the more confidential the information the stronger the REP).

270 McKennitt supra note 23 at para. 15, endorsed in Browne ibid. at para. 29.

271 See Delany and Carolan supra note 75, 329-330 (noting the transitory relationship between john and prostitute failed to attract a REP in Theakston v MGN Ltd [2002] EMLR 22, and that a REP was found in the longer running adulterous affair in CC v AB [2006] EWHC 3038. Stronger REP applied in McKennitt supra note 23, in which the court emphasized the decades-long long friendship between the parties). cf Butler supra 75.

272 TKL v TMP, 2016 BCSC 789; likewise, cf LAM v JELI 2008 BCSC 1147 (invasion of privacy where defendant installed camera inside plaintiff’s bathroom).

273 Wasserman supra note 55, at para. 77 (invasion of privacy where neighbour video tapes neighbour inside home; activities inside home attract a high expectation of privacy, but images caught outside along property line not private).

274 Watts supra note 55, at para 21 (invasion of privacy where defendant screened plaintiff’s telephone calls made from insider her home).

275 Sibler (c.o.b. Stacey’s Furniture World) BCTV Broadcasting Systems, (1986) 69 BCLR 34, at para. 17.

276 Milner supra note 55.

277 Milner ibid at para 87.

278 Druken supra note 124.

279 Druken ibid at para 43.

280 Milner supra note 55, at paras. 76-78 (REP also reduced because she was aware of being investigated for malingering and should have foreseen the videotaping).

281 Cf. BCLI Report supra note 74, 28: When in public, “some degree of observation by others is inevitable”, however “[f]ew of us would assume…that merely venturing outside of dwellings results in a surrender of all of the interests commonly understood to be embraced by the concept of privacy.”

282 For detailed arguments against using the public location to determine privacy rights, See Moreham, ‘Public’ supra note 145; Paton-Simpson, ‘Paranoid’ supra note 128; McClurg, supra note 28.

283 Heckert supra note 184, at para 81.

284 Heckert, ibid, at para 83, citing Milner supra note 55, at para 79.

285 Heckert, ibid, (concluding conduct was intrusive because the camera was placed in “such close proximity to the door to her suite that” it was possible “to see a very detailed, close-up image of [her]… “ at para 37). Cf. Aubry supra note 1, in which a majority of the Supreme Court of Canada held that a young woman’s “right to respect for private life”, guaranteed under s. 5 of the Quebec Charter of Rights and Freedoms, was violated, and civil damages were awarded, when a photographer took a photo of her sitting on a fountain in a public square and published it in a magazine without her consent. Aubry is a difficult decision. The court approached the case as concerning image rights receiving per se protection as an extrapatrimonial aspect of privacy and dignity in civil law. As a result, the claim was not approached using a REP test, although that phrase does appear in places in the judgement when discussing the relationship between image rights and free expression. As mentioned above, no statutory tort in Canada’s common law provinces affords per se protection to image rights; instead, to the extent they are protected, it is only where the defendant uses them for commercial gain.

286 ALRC supra note 10 at para. 6.45, fn 41 (noting “it is not possible to draw a rigid line between what is private and that which is capable of being witnessed in a public place by other persons”).

287 Murray supra note 67; Weller supra note 143; Campbell supra note 1.

288 See Andrews v TVNZ (2006), Auckland CIV 2004-404-3536 (HC) (trial judge held that the claimant had a REP where he was filmed at the scene of a car crash; action ultimately failed, however, because footage was found not to be highly offensive, as required under New Zealand law, on the basis that it did not depict the person in a bad light. ibid). For a criticism of this aspect of the case, see: Moreham, ‘Important’ supra note 46, 241-43.

289 See Warby et al., supra note 23, 261 (Press Complaints Commission Code of Conduct prohibits intrusions into ‘private places’); McClurg, supra note 28, 1066 (privacy of the home virtually absolute); Cf. Mosley v United Kingdom (2011) 53 EHRR 30, at para. 115.

290 Lenah Game Meats supra note 18, at para. 42.

291 Restatement supra note 22, 652D Comment on Clause (a): “The protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place...and to the habits of his fellow citizens;” cf NSWLRC supra note 10, at para. 5.26.

292 McClurg, supra note 28, 1066; Delany and Carolan, supra note 75, 305-6; Paton-Simpson, ‘Paranoid’ supra note 128, 326-7.

293 Moreham, ‘Public’ supra note 145, 621-3.

294 ibid.

295 ibid, 623.

296 Reklos supra note 23, at para. 37.

297 ibid.

298 Moreham, ‘Public’ supra note 145, 627-8; Butler supra note 37, 375; cf ALRC supra note 10, at para. 6.73 (“a person who runs naked on a football field can hardly expect not to be photographed”).

299 Aubry supra note 1, at para. 53.

300 Campbell supra note 1, at paras. 122-3; cf Murray supra note 67, at para. 50.

301 Reklos supra note 23, at para. 37.

302 Peck v United Kingdom [2003] E.M.L.R. 15 at para. 62; Campbell supra note 1 at para. 75.

303 Moreham, ‘Public’ supra note 145, 623-7; Moore supra note 251. Both authors argue in such circumstances the law should presume a REP exists; see also Delany and Carolan supra note 75, 335.

304 The Restatement supra note 22, 652B Comment (c) has carved out an exception to the seclusion requirement for bare intrusions where the activity concerned is embarrassing and distressing.

305 Campbell supra note 1, at paras. 74-5; likewise, see Hosking supra note 1, at para. 164.

306 See Moreham, ‘Public,’ supra note 145, 622-3.

307 Douglas v Hello! Supra note 265 (security measures to control a wedding guest list and prevent photography militated in favour of treating the ceremony and reception as private); Von Hannover supra note 1, at para 68 (emphasizing access to Monte Carlo Beach Club, where some photographs of the applicant were taken, was strictly regulated which militated in favour of privacy claim).

308 Lenah Game Meats supra note 18, at para. 42.

309 Murray supra note 67.

310 ALRC supra note 10, at para. 6.66.

311 Murray supra note 67, at paras. 45, 56-7..

312 Warby et al., supra note 23, 260; Butler, supra note 37, 375.

313 Kaye v Robertson [1991] F.S.R. 62 (CA); Davis supra note 80.

314 Davis ibid, at para. 13.

315 See NSWLRC supra note 10, at para. 5.35; ALRC supra note 10 at para. 6.66.

316 Moreham, ‘Doctrinal,’ supra note 73, 647-8; Venables v News Group Newspapers [2001] 2 WLR 1038 (UKQB) (injunction granted to keep address of child murderers secret to protect them from harassment or harm).

317 ALRC supra note 10, at para. 6.70 (“Some information may be considered to be more private in some cultures than in others. These expectations may be well-known in the community”).

318 ALRC ibid, at para. 6.67.

319 Fouad v Wijayanayagam, 2015 BCCA 272.

320 Fouad, ibid, at para.12 (“[i]t is important to the safety and well-being of the public that a licensed professional's qualifications are a matter of public record”).

321 Niemela v Malamas, 2015 BCSC 1024.

322 ibid at para. 45.

323 Two leading textbooks express this view: Delany and Carolan, supra note 75, 324-6; Warby et al. supra note 23, 258; cf ALRC supra note 10, at para. 6.67 (“A professional sportsman or a politician, for example, cannot reasonably expect the same level of privacy as other members of the public, although they can reasonably expect some privacy”).

324 Although legal privacy rights must be based on normative conclusions about the degree of privacy we ought to enforce, the legal test should also be responsive to (but not necessarily mirror) social norms in a descriptive sense, lest the law lose touch with reality: Solove, ‘Conceptualizing,’ supra note 111, 1142; Paton-Simpson, ‘Paranoid,’ supra note 128, 326-7.

325 There is no specific legal definition of ‘public figures’ in England, New Zealand, Canada or in the law reform commission reports from Australia. It is probably impossible to create a workable definition in the abstract because the term naturally encompasses many different types of public figures. The type of public figure the claimant is will have a major impact on the strength of the defendant’s free speech rights in the context of disclosure, for arguments about the value of such speech will vary considerably (contrast celebrity gossip, at one extreme, with political reporting on a politician’s corrupt personal dealings). A discussion of how to balance privacy rights with a free speech defense falls outside the scope of this paper. However, our point in the text above has nothing to do with free speech rights. It is simply that the normative reasonableness standard must mean that public figures of any variety must endure certain de minimis intrusions by virtue of their high public profile.

326 Hosking supra note 1, at para. 121.

327 This broadly reflects the reasoning of Lord Hoffmann in Campbell supra note 1.

328 This broadly reflects the reasoning of Laws LJ in Regina (Wood) supra note 23.

329 The statutory privacy torts each contain a number of discrete defences. In the present context, the defense of public interest (for which there is virtually no Canadian jurisprudence) would require careful analysis. A discussion of this and other defences falls well outside the scope of this paper, as we are concerned with developing a test for prima facie invasions only. For a discussion of this issue in England, and suggestions that a similar approach be followed in Canada, see: C. Hunt, "The Future of Privacy: The Conflict with Free Speech" (2015) 43:3 Advocates' Quarterly 391.

330 ALRC supra note 10, at para. 6.67.

331 See R. Stevens, Torts and Rights (OUP, 2007), 330-339 (arguing that courts initially created the rights protected in tort law to reflect the common morality of the community; and shared norms continue to shape the scope of contemporary torts); Post, ‘Privacy’ supra note 3; R. Post, “The Social Foundations of Defamation Law: Reputation and the Constitution” (1986) 74 Calif. L.R. 691.

332 See the discussion above under heading “Part 2: The Framework Reasonable Expectation of Privacy Test”.

333 There is no contradiction between this point and our rejection of a ‘triviality’ threshold discussed above under ‘the nature of the information’. We rejected a discrete rule that says ‘trivial information is not protected,’ because such a rule fails to appreciate that other REP factors may operate to buttress a privacy claim even where the information itself, analysed in isolation, is anodyne. Here we are asserting that the claimant’s public profile is one non-determinative factor courts should consider when deciding whether it is reasonable for the claimant to be free from the impugned intrusion. Sometimes this will mean that if the claimant has a high public profile, then it will not be reasonable to sue over very minor intrusions. But it all depends. Courts should consider all of the REP factors globally.

334 NSWLRC supra note 10 at para. 5.34; ALRC supra note 10 at para. 6.67; cf Australian Law Reform Commission, For Your Information, supra note 44, at para. 74.126. We are justifying this principle in prevailing social norms as reflected in the normative REP test. This principle has nothing to do with any public interest in disclosure, or with some fixed rule like ‘trivial intrusions are not actionable.’

335 Delany and Carolan, supra note 75, 324-6; Warby et al., supra note 23, 258.

336 A v B Plc [2003] QB 195, [11 xii]. His Lordship went further, apparently equating the public’s “understandable” interest in celebrity gossip with a “legitimate interest in being told the information” (ibid). This latter observation was rightly rejected in McKennitt supra note 23, at para. 64 because it is inconsistent with the ECrtHR’s holding in Von Hannover supra note 1 (photographs of Princess violated privacy under art. 8 because published solely to satisfy public “curiosity” and did not relate to matter of public interest).

337 Sciacca v Italy [2006] 43 E.H.R.R. 20, at paras. 27-9; cf Von Hannover v Germany (no.2), [2012] E.M.L.R. 16, at paras. 110, 113 in which the Grand Chamber said that national courts should consider “[h]ow well known” the applicant is and emphasized that a distinction exists between “private individuals” and “persons acting in a public context, as political figures or public figures” when assessing the scope of privacy rights.

338 ALRC supra note 10, at para. 6.73.

339 Murray supra note 67, para. 36.

340 Andrews supra note 288, at para. 47. Unfortunately, the court did not apply this principle to the facts, which concerned the videotaping of a couple on the roadside after a terrible car accident. The plaintiff had been drinking before the crash.

341 Milton v Savinkoff, [1993] BCJ No. 2396, 18 CCLT (2d) 288.

342 Milton, ibid at para. 16.

343 For a discussion of the plethora of possible meanings, see L. Tat, “Plaintiff Culpability and the New Zealand Tort of Invasion of Privacy” (2008) Vict. U. Wellington L. Rev. 365.

344 In contrast, if ‘carelessness’ is treated as simply one non-determinative REP factor, the court avoids having to come to a firm conclusion on this issue; it can label the conduct ‘somewhat careless’, which may militate against a REP, and then move on to the other REP factors to make a global assessment of privacy rights.

345 Indeed, could it not be said that the plaintiff is the Ontario case Jane Doe supra note 12 was careless in giving nude photographs of herself to her casual boyfriend? If Milton was followed in that case, an egregious invasion of privacy would go unpunished.

346 Milner supra note 55 at para. 90.

347 It was only the mother who was suspected of malingering on the insurance policy. Note that the daughter’s claim ultimately failed, because the pleadings were defective as only the mother was named as a plaintiff. Nevertheless, the reasons are clear that the daughter’s claim would have prevailed had she sued on her own behalf. In coming to this conclusion, Melnick J endorsed Professor Osborne’s criticism of Milton (PH Osborne case comment of R v Milton, 18 CCLT 2d 292 at 297): “To some degree the plaintiff was the author of her own misfortune…[but] carelessness does not authorize a breach of privacy….it is reasonable to expect that others will not seize on our lack of vigilance to pry into our personal affairs. We are certainly not authorizing, consenting or waiving our right to privacy.”

348 ALRC supra note 10, at para. 6.75.

349 Butler supra note 37, 375; cf Axel Springer AG v Germany, Application no.39954/08 (7 February 2012) (ECrtHR) at para. 101 (where claimant had “sought the limelight” his “‘legitimate expectation’ that his private life would be effectively protected was henceforth reduced”).

350 A v B supra note 336, at para. 11 xii.

351 A v B, [2005] EWHC 1651 at para. 22.

352 A waiver approach was suggested in early English cases: see Woodward v Hutchins [1977] 1 WLR 760, 765, (where claimant courts publicity he is in “no position to complain” about any unfavourable publicity that follows). The modern English approach treats this as simply one REP factor, as the above quotes demonstrate. The same is true for the ECrtHR (Axel Springer, supra note 349) and the ALRC (ALRC supra note 10, at para. 6.75)

353 Cf. H. Fenwick and G. Phillipson, Media Freedom Under the Human Rights Act (OUP, 2006), 774. A v B supra note 351, at paras. 21-22 (noting this is not a question to be analyzed under a waiver approach; rather, it is a question of reasonableness—that is, can the person still reasonably expect, in light of his previous conduct, to maintain a legal privacy action); cf Axel Springer supra note 349, at para. 101 (claimant had “sought the limelight” and therefore his “‘legitimate expectation’ that his private life would be effectively protected was henceforth reduced”).

354 Campbell supra note 1, at paras. 66-7.

355 See Butler supra note 37, 375.

356 A v B, supra note 351, at paras. 21-23 (fact claimant previously discussed aspects of drug addiction and his marriage in media made it less reasonable to expect law to protect against future disclosures of similar information about his addiction and its impact on his marriage; principle grounded in normative reasonableness, not on the basis that information was not private—that is, court accepted information was private, just now it was less reasonable to sue over it because of prior disclosures; court clear this is a reasonableness inquiry, not a waiver one).

357 McKennit v Ash [2005] EWHC 3003, at paras. 79-80; McKennitt (CA) supra note 23, at paras. 53-5.

358 McKennitt (Trial), ibid, at para. 79.

359 ibid, at paras. 79-80.

360 McKennitt (CA) supra note 23, at paras. 53-4.

361 An early B.C. case determined, without any analysis, that one’s name and address which were disclosed is not actionable because this information is already publically available: Belzberg v British Columbia Television broadcasting Ltd., (1981) Vancouver Registry No. C803082, unreported (BCSC), discussed in Sibler supra note 275, at paras. 11-13; cf Fouad supra note 319, at para. 12 (accessing a medical doctor’s credentials not a breach of privacy, in part because these were publically available); but see Griffin v Sullivan 2008 BCSC 827 (defendant published plaintiff’s name, address and photograph online; held plaintiff “was entitled” to keep these “private” at para 84).

362 Restatement supra note 22, 652D (b) (no liability where publicity is given to information already public, including public records or gathered in a public place).

363 Jane Doe supra note 12, at para. 47 (essential complaint is defendant “made public an aspect of the plaintiff’s private life” by posting images that were initially “privately shared”).

364 University of British Columbia (Re), 2013 BCIPC 4 at paras. 38, 35 (“knowledge by others does not transform the nature of the information itself”; analysing Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165).

365 OBG v Allan [2008] 1 A.C. 1 (UKHL) at para. 225; Douglas v Hello! Supra note 265, at para. 106; Von Hannover (no.2) supra note 337, at para. 111; PJS v Group Newspapers Ltd, [2016] UKSC 24, at paras. 57 and 65 (issuing injunction to restrain further publication of information already disclosed on internet).

366 Warby et al. supra note 23, 557; cf PJS v Group Newspapers, ibid, at paras. 57 and 65 (contrasting breach of confidence with privacy, finding information in public domain can be restrained under former if republication intrusive).

367 McKennitt (trial) supra at para. 81; PJS v Group Newspapers, ibid, at paras. 26, 35, 51.

368 McKennitt (CA) supra note 23, at para. (“[I]nformation that is already known cannot claim the protection of private life”).

369 ALRC supra note 10, at para. 6.63.

370 The ALRC ibid, at para. 6.62, agrees.

371 Paton- Simpson, ‘Circles,’ supra note 128, 338.

372 Attorney General v Guardian Newspapers (No.2) [1990] 1 A.C. 109 (HL), 260 (public domain limit will not defeat confidence claim where republication of widely available personal information is likely to bring it to the attention of different readers, by virtue of geography or because of its differing curiosity); Paton-Simpson, ‘Circles,’ supra note 128, 339.

373 PJS v Group Newspapers supra note 365, at para. 34.

374 Melvin v Reid, 112 Cal App 285 (1931).

375 R v Broadcasting Complaints Commission, ex Parte Granada Television Ltd. [1995] EMLR 163 (CA), 168; Re X and Y (Children) [2004] EWHC 762, 634.

376 Tucker v News Media Ownership Ltd. [1986] 2 NZLR 716, 732-4.

377 Paton-Simpson, ‘Circles,’ supra note 128, 330-1; Butler, supra note 37, 376; Warby et al., supra note 23, 556.

378 NSWLRC supra note 10, at para. 5.28.

379 Delany and Carolan, supra note 75, 333.

380 See Re X and Y (Children) supra note 375, 634 (information, though accessible, will not be in the public domain simply because it “remains in a cuttings file or a database [and] never or hardly ever sees the light of day”).

381 PJS v Group Newspapers supra note 365, at para. 34 (distribution of story in hardcopy qualitatively different and more intrusive than fact information already exists on internet and can be sought out); cf NSWLRC supra note 10, at para. 5.28.

382 Re X and Y (Children) supra note 375, 634; cf Rotaru v Romania, App. No. 28341/95, May 4, 2000 (ECrtHR) at para. 43 (systematic collection of stored files relating to applicant’s “distant past” engages privacy under art. 8); cf Paton-Simpson, ‘Circles,’ supra note 128, 336 (endorsing this point); and Report of the Committee on Privacy and Related Matters (cm 1102, 1990), at paras. 10.16-10.19 (endorsing this point).

383 Murray supra note 67, at para. 36.

384 Campbell supra note 1, at paras. 98, 119 (Lord Hope), 153-5 (Baroness Hale), 165, 169 (Lord Carswell); Von Hannover supra note 1, at para. 59 (bolstering privacy claim by emphasising strong sense of intrusion Princess felt at being targeted by paparazzi).

385 PJS v Group Newspapers supra note 365, at paras. 35, 51.

386 Douglas v Hello! supra note 265, at para. 106.

387 Specifically, New Zealand and Ontario’s common law actions of intrusion and disclosure, which are based on the American Restatement approach; and the Victoria Law Reform Commission’s recommendation.

388 Murray supra note 67, at para. 36.

389 Campbell supra note 1, at paras. 98, 119 (Lord Hope), 153-5 (Baroness Hale), 165, 169 (Lord Carswell); Von Hannover supra note 1, at para. 59; PJS v Group Newspapers supra note 365 (distress likely suffered crucial factor motivating court to issue injunction restraining republication of information already available online).

390 Privacy SK supra note 14, s. 6(2)(b).

391 Privacy MB supra note 14, s. 4(2)(b).

392 In Newfoundland a class action under the Privacy Act was recently certified in relation to the defendant’s unauthorized accessing of multiple peoples’ financial information. The plaintiffs pleaded they suffered anguish, shock and fear, and the court did not suggest this was irrelevant to the prima facie case. Since the tort is actionable per se, and since damages are not relevant at this stage in the proceeding, this may support implicitly than the effect on the claimant is relevant to a REP: Hynes v Western Regional Integrated Health Authority, 2014 NLTD (G) 137.

393 Davis BCSC supra at para 19.

394 Davis, BCCA supra at para. 13.

395 ALRC supra at para. 8.29.

396 ALRC ibid, at para 8.28.

397 The fact these individuals were not actually impacted by invasions in Murray supra (J.K. Rowling’s child) and Kay v Robertson supra (semi-conscious celebrity recovering from brain injury in hospital corned by paparazzi) should not undermine their right to be free from such offensive intrusions as a matter of principle.

398 ALRC supra at para. 8.30.

399 Post, supra 962.

400 ALRC supra at para. 8.30. The actual distress suffered would of course also be relevant to any compensatory damages that may be awarded.

401 McClurg, supra 1063 (normative REP test must respond to the “magnitude of intrusion, measured by the defendant’s conduct and its correlative impact upon the plaintiff’s privacy”).

402 Miller v National Broadcasting Co., 232 Cal. Rptr. 668, 679 (Cal. Crt. App., 1986) (listing: (1) degree of intrusion; (2) conduct and circumstances of the intrusion; (3) intruder’s motives and purpose; (4) setting of intrusion; (5) expectations of the victim).

403 Privacy BC supra, s. 1(4); Privacy MB supra s. 3(a); Privacy SK supra s. 3(a); Privacy NFLD supra s.4(a).

404 Privacy MB ibid s. 3(a); Privacy SK ibid s. 3(a); Privacy NFLD ibid s.4(a).

405 Milner supra at para. 93.

406 ALRC supra at para. 6.41.

407 McClurg, supra 1057-8, 1064-5.

408 ibid, 1064-5 (arguing staring at someone in public is rude, but not actionable, as it is an ordinary incident of community living; but harassing or surveilling someone is a highly offensive breach of social norms, and should be actionable); cf Moreham, ‘Public,’ supra 630-1 (surveillance and harassment should militate in favour of actionability); L. Barnett-Lidsky, “Prying, Spying and Lying: Intrusive Newsgathering and What the Law Should Do About It” (1998) 73 Tulane L. Rev. 173, 212.

409 Wolfson v Lewis, 924 F. Supp. 1413, 1420 (E.D. Pa. 1996) and cases cited therein; cf J. Marmon, “Intrusion and the Media: An Old Tort Learns New Tricks” (2000-1) 34 Ind. L. Rev. 155, 166; Paton-Simpson, ‘Paranoid’ supra 324-6, for American cases.

410 Von Hannover supra at paras. 44, 59; cf Von Hannover v Germany (no.2) supra at para. 113 (harassment and surveillance may increase intrusiveness).

411 G. Phillipson, “The ‘Right’ of Privacy in England and Strasbourg Compared” in A. Kenyon and M. Richardson, New Dimensions in Privacy Law (CUP, 2006), 210-11.

412 Regina (Wood) supra at paras. 34-5. This is true even if the photographs are not published subsequently.

413 ibid, at para. 34.

414 Campbell supra at paras. 121-3 (Lord Hope), 165 (Lord Carswell), 154 (Baroness Hale), 30 (Lord Nicholls). Note however that Baroness Hale and Lord Nicholls suggested that the mere fact photographs are taken covertly will not itself be enough to make them prima facie private, but that does not mean such offensive behaviour does not militate in favour of a REP.

415 MGN v United Kingdom [2011] E.M.L.R. 20 (ECrtHR) at para. 151.

416 Von Hannover v Germany (no.2) supra at paras. 113, 122. It seems that these factors will add weight to the privacy right at the balancing stage. They need not be present for article 8 (privacy) to be engaged, however, since it seems Strasbourg regards engagement occurring at the moment any anodyne photograph is taken without consent: see paras. 95, 96.

417 Murray supra at para. 36.

418 Privacy BC supra s. 2(2)(a); Privacy SK supra s 4(1); Privacy MB supra s. 5(a); Privacy NFLD supra s. 5(1)(a).

419 ALRC supra , Recommendation. 11-4.

420 See Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24, at paras. 7, 10.

421 ibid, at paras. 12-13.

422 Above, under the discussion of ‘willfulness’, we rejected a requirement that the defendant must know, either actually or constructively, of the plaintiff’s privacy expectations. The position advanced here is not inconsistent with that approach, as we suggest the defendant’s knowledge of no consent is relevant, and may bolster a REP, but it is not required.

423 Murray supra at para. 50.

424 McClurg, supra 1069.

425 Aubry supra at para. 23.

426 Murray supra at paras. 36, 50.

427 W.P. Keeton et al., Prosser and Keeton on Torts, 5th ed. (St. Paul: West, 1984), 856; McClurg, supra 1060-1; Miller supra 679; Norris v KING, 355 SO. 2D 21 (LA CT. APP.), CERT. DENIED, 439 U.S. 995 (1978).

428 NSWLRC supra at para.5.41 (listing “spite, revenge or blackmail”).

429 ALRC supra at paras. 6.53; 8.2; 8.32 (court should consider if defendant motivated by malice, because such motivation is more likely to make the invasion ‘serious’).

430 Davis BCSC supra note 93, at para. 18.

431 Davis BCCA supra note 80, at para. 14.

432 Milner supra note 55, at para. 89.

433 Nesbitt v Neufeld, 2010 BCSC 1605, at para. 93 (ex-husband obtained emails of former wife from shared computer and posted on internet; purpose was to “embarrass and scandalize” militating in favour of breach of privacy); Watts supra note 55 (breach of privacy where neighbour deliberately records neighbour’s private phone conversations using a scanner; purpose to make neighbour’s life “miserable”, militating in favour of invasion). Other courts have held that an improper motive, though relevant, does not automatically convert a claim into a privacy violation: Fouad supra note 319, at para 26.

434 McClurg, supra note 28, 159-62.

435 ibid, 156.

436 D. Feldman, “Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty” (1994) 47 Current L. Prob. 41, 59; cf Paton-Simpson, ‘Paranoid,’ supra note 128, 344-6.

437 Paton-Simpson, ‘Paranoid,’ ibid, 345 (citing American cases recognizing these examples are offensive and actionable).

438 Mayor of Bradford v Pickles [1895] A.C. 587 (HL), followed in Allen v Flood [1898] A.C. 1 (HL).

439 Pickles, ibid, 594, 599.

440 J. Finnis, “Intention in Tort Law” in D. Owen (ed.) Philosophical Foundations of Tort Law (Oxford: Clarendon, 1997), 238.

441 ibid, 244.

442 ibid, 244-5. For a detailed discussion of how invasions of privacy resonate with prominent theoretical accounts of corrective justice and other rights-based tort scholarship, see C. Hunt, “From Right to Wrong: Grounding ‘Right’ to Privacy in the ‘Wrongs’ of Tort” (2015) 52:3 Alberta Law Review 635. Note that American courts have rejected Allen v Flood and recognized that an intent to harm another is prima facie tortious: see ibid, 241-2, citing Tuttle v Buck 119 N.W. 946 (Minn. 1909); Restatement supra note 22, 870 Comments C, E.

443 See Finnis, supra note 440, at fn. 51, making this point and citing Crofter Hand Woven Harris Tweed Co. v Veitch [1942] A.C. 25 (HL), regarding conspiracy, and Christie v Davey [1893] 1 Ch. 316 and Hollywood Silver Fox Farm Ltd. v Emmett [1936] 2 K.B. 468, regarding nuisance.

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