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Privacy damages awarded for commercial use of a person’s image in a public setting

damages awardedOrganizations which use images of persons engaged in activities in public settings may want to revisit their use of such images in light of a recent Ontario decision which found such use to constitute an invasion of privacy that warranted a $4,000 privacy damages award.

In Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435, the Ontario Superior Court awarded privacy damages to a plaintiff who took offence to a photo in which she appeared being used in commercial marketing materials without her consent. What is notable about this case is that the plaintiff was in a public area which was open to view by all, the video in she appeared showcased the area instead of her in particular, the fact that damages were awarded, and the rather remarkable amount of damages in light of the harm alleged.

Intrusion upon seclusion and the issue of damages

It has been five years since the tort of “intrusion upon seclusion” was recognized in Ontario and courts are still working out the nuances of the tort, particularly in respect of damages. First introduced in the Ontario Court of Appeal case Jones v Tsige, this tort has gained considerable traction for claimants seeking to protect their personal information and likeness. The Vanderveen v Waterbridge case appears to have further muddied already unclear waters.

In Jones v Tsige, Justice Sharpe outlined the test for this tort: the defendant’s conduct must be intentional; the defendant must have invaded, without lawful justification, on the plaintiff’s private affairs or concerns; and a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. This third element, along with a suggested damages limit of $20,000 in circumstances where there has been no pecuniary loss, has typically served to prevent a flood of privacy class actions seeking high amounts of damages for purely subjective harm.

Vanderveen v Waterbridge appears to have altered this third element, introducing a subjective harm analysis which may make it easier for claimants to establish the tort.

Context

The Defendant, Waterbridge Media Inc. (“Waterbridge”) was contracted to create a sales video for a real estate developer in the Westboro area in Ottawa. The video was intended to showcase the “Westboro lifestyle”, including activities and amenities enjoyed by its residents. The company filmed in a number of public areas, capturing local residents carrying out daily activities, including the Plaintiff, Ms.Vanderveen, who was jogging on a public trail. The video was posted on the developer’s website, and on the developer’s YouTube channel.

The Plaintiff appeared in the promotional video for approximately 2 seconds, on the right hand side of a split screen shared with images of two other residents. When the video came to the Plaintiff’s attention, she contacted the real estate developer to request that her image be removed. A series of heated email exchanges ensued between the Plaintiff and Defendant. The video was ultimately discontinued and removed from website and YouTube within one week.

Ms.Vanderveen brought a claim against Waterbridge for breach of privacy (intrusion upon seclusion), pecuniary damages for appropriation of personality, and sought punitive damages.

Ms.Vanderveen testified that she experienced shock and humiliation over the version of herself that was publicly displayed without her consent. She had since lost a considerable amount of weight and felt that the image was not an accurate reflection of her person. Waterbridge argued that consent was not required from individuals in public spaces, and if it was, that if an individual saw the camera (as Ms. Vanderveen stated she had) and continued moving consent was implied.

The Court found that in capturing the image of the Plaintiff and publishing it in a commercial video without her consent, Waterbridge had committed the tort of intrusion upon seclusion. The Court reasoned that the conduct was intentional and there was no legal justification. The Court further found “that a reasonable person, this legally fictitious person who plays an important role in legal determinations, would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her.” Damages of $4000 were awarded.

Commentary

This case muddies the waters on issues of expectations for personal privacy in the public sphere, whether a reasonableness or subjective analysis is applied, and appropriate damage awards for this tort.

Privacy in the public sphere and commercial interest

The weight given to individual privacy rights in public spaces is a contentious issue. As a general rule, a person engaging in activities in public will have a substantially reduced expectation of privacy. However, this decision suggests that intrusion upon seclusion claims may now be properly commenced for images collected or filming undertaken in the public sphere. The Defendant had argued that “obtaining consent in such situations is impractical” but the Court decided that an individual’s privacy right prevails over a commercially motivated interest.

It is unclear whether this approach to the tort applies only when the person’s likeness is used for a commercial purpose or to all instances of public filming. Certainly, the commercial motivation of Waterbridge seemed be a significant factor in the mind of the judge. Until ironed out by the courts, both profit and not-for-profit companies that capture and utilize public images should be aware that they could be subject to a claim if the imagery was intentionally captured without legal justification. That being said, the claimant must still meet the third element of the tort.

Reasonable or subjective standard

The third element of the tort requires a reasonableness assessment to determine whether the conduct was highly offensive causing distress, humiliation or anguish. Sharpe provided some guidance for this analysis in Jones: “A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: 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.”

This implies a high threshold, and Sharpe was cognizant of the possibility that the tort had the potential for abuse if not narrowly circumscribed. However, Leclaire J. undertakes little if any analysis as to whether a reasonable person would find the circumstances of this case to be highly offensive and whether the result would be distress, humiliation or anguish. The conclusion seems to be based on the Plaintiff’s subjective evidence alone, which would not meet any of Sharpe’s guiding considerations. General upset regarding a two-second clip in a two-minute video where the complainant believes the image did not portray her in the most flattering light because she was overweight seems to suggest circumstances that, while unfortunate, most reasonable persons would not regard as “highly offensive”.

A fully subjective analysis of the harm experienced has problematic outcomes. It opens the courts for all kinds of invasion of privacy claims by particularly sensitive plaintiffs. An unclear standard is left for all involved parties, including legal representatives advising clients on what behaviour crosses the line (or where the line is, for that matter).

Damages award

While $4000 may seem insignificant, it is a relatively high damages award for this tort, particularly in the face of other successful privacy breach claims that are on their face far more egregious. For instance, in John Stevens v Glennis Walsh, 2016 ONSC 2418 the defendant accessed the plaintiff’s employment information, which she gave to his ex-wife for use against him in divorce proceedings. The invasion of personal privacy was found to be “significant”, and yet the plaintiff was only awarded $1500.

In McIntosh v Legal Aid Ontario, 2014 ONSC 6136 the defendant accessed the plaintiff’s Legal Aid Ontario file, which she then provided to the plaintiff’s ex-boyfriend (the defendant’s current boyfriend). The boyfriend used the information to threaten the plaintiff with involving the Children’s Aid Society to remove her children. The court found the invasion of personal privacy to be intentional and significant. Interestingly, the court applied a subjective analysis and found that the breach caused the plaintiff annoyance, anxiety and distress. The plaintiff was awarded $7500.

As evidenced by these cases, damage awards are all over the map. In the present case, it is also possible that the damages were influenced by what Leclaire referred to as “disparaging” email remarks. Regardless, the small claims court has work to do in establishing a clear framework to assess and ground damage awards in this tort.

Lessons for business

In light of this decision, organizations which use images for commercial purposes would be wise to seek the consent of all persons appearing in such images, even where the images are made in a public setting. For larger areas where individual consent may not be practicable, organizations may want to consider posting clear and obvious signage that recording is occurring and people’s images may be used.

This recent decision does not clarify the law on privacy damages. It does, however, introduce a great deal of uncertainty into the environment for businesses.

By Leah Ostler and Kirsten Thompson

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McCarthy Tétrault LLP

McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally.McCarthy publishes a series of blogs to share information with companies to help them comply and manage their businesses. On the Inside Internal Controls blog we will share some of those blog posts sharing their expertise among others, in the areas of Competition/Anti-trust, Corporate and Commercial Law, Intellectual Property, Privacy, Environmental Law, Technology and Litigation. Read more here
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