The future of the tort of privacy

We live in a strange era where the evolving narrative of the right to privacy, which dominates news headlines and policy circles, is disconnected from the law of privacy, which is messy, piecemeal, and underdeveloped. It is not that we don’t have a litany of privacy laws in Canada. We just lack all the right ones.

What we are missing, in particular in Alberta, is a broad cause of action in tort law for an invasion of privacy.

In Canada, privacy interests underlie several laws, such as the torts of defamation and intentional infliction of nervous shock, and crimes of fraud, harassment or voyeurism. Sections 7 and 8 of the Canadian Charter of Rights and Freedoms protect privacy, although primarily and directly in a criminal law context. Most well-known are provincial and federal privacy legislation regulating public and private sector data collection, use and disclosure. These are quintessential data protection laws enforced by federal and provincial privacy commissioners, a narrower legal framework within privacy. Some provinces, including Alberta, have created a statutory cause of action for non-consensual disclosure of intimate images (aka revenge pornography).

But there is an unnerving gap in the law at a time when technology is advancing in new and varied ways that are invasive to our concept of privacy. We live and interact online as much as we do in person these days, and social media can be a platform for doxing, cat fishing and other forms of online impersonation, harassment and abuse. A person’s private Facebook or Snapchat messages might be screenshot and shared online, an individual’s information posted on escort or shaming sites, or images manipulated for humiliating effect (e.g. deepfakes).

As technology evolves, so do the opportunities and forms of privacy invasions. Technology can facilitate abuse, from monitoring online accounts, tracking movements, recording conversations or sharing intimate images. The gadgets can be small and difficult to detect, such as the pen camera used by a teacher to film the breasts of high school girls in R v Jarvis. The “internet of things” has increased connectivity and can be a toolkit for domestic abuse, such as for ex-partners to remotely lock doors, turn on and off lights and raise the temperature in an ex-partner’s home. The nature of the threat is evolving. Robots and artificial intelligence accelerate the ways technology is embedded in our lives, amplifying our privacy vulnerabilities.

Some of these issues are addressed by existing privacy laws and others fall into the grey category of lawful but awful. However, tort law serves a crucial function in private law, mediating social behaviour and protecting fundamental rights. In the face of social upheaval, it can nudge social norms by acknowledging that an interest such as privacy is at stake and setting the rules of reasonable behaviour. Further, technology is a reminder of the centrality of privacy to our everyday experiences. Privacy enables us to participate meaningfully in society and build trusting relationships. Tort law has often played an important role in the mediation of this kind of space.

Alberta is also out of step with many other provinces. British Columbia, Saskatchewan, Manitoba and Newfoundland and Labrador have statutory causes of action in tort for invasion of privacy. Quebec protects privacy in its Charter of Human Rights and Freedoms and Civil Code. Ontario adopted a common law privacy tort of intrusion upon seclusion in Jones v Tsige, which has been followed in Nova Scotia, and paved the way for the adoption of other privacy torts in Ontario.

Introducing a tort of privacy is not the panacea to technology-enabled privacy invasions. We look no further than defamation to know that litigating these cases is expensive and time-consuming and rarely delivers the results sought. It is a high-volume, low-value, legally complex matrix. However, to address the access to justice issues, whether through fast-track procedures, online tribunals, or other forms of support, we first need a law.

All of this means two things for Alberta. First, a privacy tort should be cemented into Alberta law, whether through common law or statute. Jones has been cited in several cases in the province, so there is good reason to think it will be adopted by the courts here, but thus far, there has been no decision on the merits. Second, Alberta has an opportunity to lead. The suite of privacy torts on which Jones is based are woefully inadequate to the task of addressing technology-enabled privacy invasions - “impoverished” as deftly described by Dr. Stuart Hargreaves. Alberta might need a privacy tort, but not that one.

Jones’ intrusion upon seclusion tort draws from the American Restatement (Second) of Torts, which identifies four distinct privacy torts. In 2021, all four torts have been adopted by Ontario courts. The other three are misappropriation of image, public disclosure of private embarrassing facts, and publicly placing a person in false light. The appeal of these torts is understandable. They are pragmatic and rules-based. You can plug in a type of activity and harm (reputation, property or emotional distress) and out pops a neat and tidy legal test. But it is ossified in a 1960s American legal mindset when the torts were proposed by Professor William Prosser, and because of the structure, cannot evolve with changing privacy norms and rapid technological innovations.

What was ossified? Among other things, the belief that privacy is what happens when we are secluded or alone, that privacy only protects deviant or intimate behaviour, and that context does not matter. In the age of technology, our privacy is vulnerable by our act of existing, because we cannot avoid going outside, using technology, sharing our personal information or otherwise being exposed. Many things we might think of as privacy invasions, such as deepfakes, catfishing, some forms of doxing, and amplification of content through search engines, would likely not be actionable as a privacy tort. The torts are also difficult to square with Charter jurisprudence on privacy, particularly the contextual factors courts considered in assessing a reasonable expectation of privacy and balancing competing rights.

For all the shortcomings of Prosser’s tort, I am conscious that nothing will bog down access to justice more than a poorly drafted tort. If the goal is to protect everyday privacy, then the tort should be, to the extent possible, certain, predictable and contained. There are a few options for law reform, but if a more significant overhaul of privacy law is the goal, a statutory cause of action is likely the best option. Other provincial legislation can be a blueprint for where to begin drafting but should not be adopted wholesale. In particular, a privacy tort should be loosely modelled on a Charter framework. I say loosely, because tort law is ultimately concerned with compensating specific losses. As a tort, this would mean that the reasonable expectation of privacy test would be the focal point of analysis, followed by an analysis of any countervailing interests and balancing between competing rights.

In the same breadth I advocate for a privacy tort in Alberta and reject the easiest option to do so. Our current common law torts are a band-aid solution, adequate if there is nothing else, but we can do better.

This commentary is based on research funded by a Social Sciences and Humanities Research Council Insight Grant.