Online Invasion of Privacy: Know your Rights
By Charles Thompson, QTMG Injury Lawyers – Ottawa Injury Lawyers, Ottawa, on June 4, 2015
Invasion of Privacy in the Digital Age
With the click of a mouse or a few strokes of a keyboard, digitally stored private information can be accessed by those with no right to do so. The results can be embarrassing, or worse. In some cases, an unjustified invasion of privacy can cause distress, humiliation, or anguish. In the case of Jones v Tsige, the Ontario Court of Appeal recognized the unprecedented opportunities for invasion of privacy in the digital age by creating a new common law cause of action called intrusion upon seclusion. This tort protects the reasonable expectation of privacy of individuals both online and offline, and the reasonable expectation of individuals that their digitally stored private information should remain private.
The Tort of Intrusion upon Seclusion
The elements of intrusion upon seclusion were set out in Jones v Tsige, para 71. To succeed in a claim for damages for intrusion upon seclusion, the plaintiff must prove that the defendant:
1. Intentionally or recklessly;
2. Invaded their private affairs or concerns without lawful justification; and,
3. That a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.
Proof of actual harm is not an element of the tort of intrusion upon seclusion, since the tort protects the intangible right to privacy. The damages are awarded based on the level of distress, humiliation, or anguish that has been caused by the breach of privacy. In cases where the plaintiff has suffered no pecuniary loss resulting from the breach of privacy, the upper range of damages has been fixed by the Ontario Court of Appeal at $20,000.00.
Case in point: Hopkins v Kay, 2015 ONCA 112
In the recent case of Hopkins v Kay, the Ontario Court of Appeal considered a class action lawsuit where it was alleged that seven employees of the Peterborough Regional Health Centre had accessed over 280 patient records without proper consent. The plaintiffs claimed intrusion upon seclusion. The hospital tried to avoid this claim by arguing that access to information by hospital staff was governed by the Personal Health Information Protection Act, which superseded the plaintiffs’ right to sue in tort. The court rejected this argument, instead allowing the plaintiff to bring a claim for intrusion upon seclusion. The court reiterated the rule of statutory interpretation that a common law right is not superseded by legislation unless the legislation shows an explicit or implicit intent to constitute an “exhaustive code” and to “occupy the field,” thereby excluding common law remedies.
This article is provided for information purposes only. Each case is decided on its own fact and one important change in fact can change the outcome of any case. Consult a lawyer for legal advice about your specific case.
Marc N. Quinn, Ottawa accident and injury lawyer focusing on representing injury victims throughout Ottawa and Ontario. We offer free consultations and work on a commission basis for most injury cases.