The statutory tort of Breach of Privacy
Posted in Privacy

Privacy is important. It is a matter of much current debate as changes in technology and the law arguably makes it more difficult to maintain and protect. Does the internet make privacy impossible? Is the passage of Bill C-51 a threat to individual privacy? Is the escalating use of drones a privacy concern? The answers to these questions are varied and uncertain. But how does the law treat privacy?

To begin, there is no common-law claim for breach of privacy. As a result, in B.C. the Legislature enacted the Privacy Act which came into force in December 2007. The Privacy Act is short, running to only five sections.  It creates a “statutory tort” making it unlawful for anyone “wilfully and without a claim of right, to violate the privacy of another.” However, the nature and degree of privacy a person is entitled to is only “that which is reasonable in the circumstances, giving due regard to the lawful interests of others.” Further, in determining if there has been a breach of privacy, the court will look at “the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.” This seems simple enough but, in practice, is very difficult to assess given the myriad situations and the individual sensitivities that could give rise to a privacy concern.

As with many areas of the law, assessing whether a breach of privacy has taken place often involves looking at past cases and how the courts dealt with them. Of particular importance are decisions from appeal courts which define the law and its application. The Privacy Act has not had a lot of appellate consideration to date. However, a recent appellate decision, Fouad v. Wijayanayagam, does provide some guidance. The decision establishes that a person’s motive in seeking information will not turn an otherwise lawful information request into a breach of privacy. Put another way, if the impugned conduct was not itself a privacy breach, the fact it was undertaken for “nefarious” motives is irrelevant.

In this case, Dr. Fouad sued Dr. Wijay for invasion of privacy relying on the Privacy Act. Within the context of a wider dispute among a number of doctors, Dr. Wijay called the local hospital and sought information about Dr. Fouad’s qualifications. This was done, in part, to sow doubt about Dr. Fouad. The trial judge found this conduct to be a violation of the Privacy Act. He reasoned that simply asking for access to private information about Dr. Fouad with such a motive was a breach of privacy. The Court of Appeal disagreed on two grounds.

First, an unfulfilled request for private information does not amount to a privacy breach. In other words, simply asking for information which you are not given is not a privacy breach. Second, a lawful request for otherwise publicly available information, whatever the motive of the person asking, cannot be turned into a breach of privacy.

If you are seeking sensitive personal information about someone, you should be mindful of the limits imposed by the Privacy Act. Before you go too far, it may be wise to consider what a court would make of your request. If there is any doubt about it, you would be better not to make the request and invite a lawsuit.


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