New Privacy Torts Lay the Way for Privacy Class Action Suits

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Just a few weeks ago the Ontario Superior Court of Justice recognized a new common law tort applicable to violations of privacy rights. This is the second new tort recognized by an Ontario court in the last few years relating to privacy rights. The first case, Jones v. Tsige, 2012 ONCA 32, recognized the tort of “intrusion upon seclusion” and the second, Jane Doe 464533 v. ND, 2016 ONSC 541, recognized the tort of “public disclosure of private facts”.

In the Jones case, the court found that the defendant committed an invasion of privacy when she used her position as a bank employee to access the banking records of her husband’s ex-wife.

A key factor in recognizing this new cause of action was the power to access large amounts of personal information using modern technology. The Court found that the common law must evolve in response to the modern technological environment and created a new tort with the following elements:

“One who intentionally [or recklessly] intrudes, physically or otherwise, upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

In the Jane Doe case, the defendant posted a sexually explicit video online. The court held that “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

The plaintiff in this case was awarded $100,000 (plus costs).

Both cases now provide grounds for numerous class action suits relating to privacy and data security breaches. In light of these developments and the quickly evolving privacy landscape in Canada and globally, companies may wish to perform a privacy audit or ‘privacy tune-up” to ensure that best practices are in place and implemented to meet these evolving legal obligations.

About the Author
Libby Gillman is, by training, an experienced corporate and commercial lawyer with particular expertise in financial institution incorporation and regulation, banking law and regulation, sophisticated and innovative payment systems, electronic banking products, emerging technology-based financial and other products and services, electronic commerce including Internet law, and legal issues of privacy and security on the Internet.