Privacy Law: Intrusion Upon Seclusion

by Shaya Silber

People are increasingly becoming conscious about their privacy. This is further promulgated by the growth of the internet. Until recently, a person only had recourse for privacy violations against businesses, and in some cases, against government bodies.

The main piece of legislation governing privacy is the Personal Information Protection and Electronic Documents Act (“PIPEDA”). In a nutshell, PIPEDA addresses the collection, use, and disclosure of private information for commercial purposes.  However, until recently, privacy violations by an individual (as opposed to a business) had no specific recourse available.

That has recently changed. In Jones v. Tsige, (“Jones”) the court recognized a new tort. The cause of action has been coined as “Intrusion upon Seclusion”.  The Jones case involved two co-workers at a bank, one of whom was dating the other’s ex-partner. Over the course of four years, Tsige accessed Jones’ banking information on over 150 occasions.  The court awarded Jones $10,000 for the intrusion upon her seclusion. However, to prevent a floodgate of frivolous claims, the court set some qualifiers to future actions. For a case of intrusion upon seclusion, the following factors must be present:

1. The defendant’s conduct must be intentional or reckless
2. The Defendant invades the plaintiff’s private affairs “without lawful justification”
3. A “reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish”

The court also added some limitations to claims of Intrusion upon Seclusion. The court stated that:

[c]laims 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.

The new tort of intrusion upon seclusion clarifies and arguably expands privacy law in Ontario.  It is now clear that individuals can be held liable for  privacy violations.

If you believe that your privacy has been violated, you may wish to contact a privacy lawyer to discuss your case, and explore the law as it relates to your situation.