Privacy and Health Records

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Toronto privacy lawyer, Gil Zvulony appeared on CHCH’s Square Off to discuss the problem of unlawful disclosure of health records and privacy breaches in hospitals.

Can you opt out of Facebook’s Terms of Use?

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Toronto Privacy lawyer, Gil Zvulony spoke to Dan Misener of CBC Radio regarding a Facebook status update that has gone viral (radio segment embedded below). The update purports to prevent Facebook from using the user’s intellectual property and private information. These types of updates have been going around for some time.  The latest looks like this:

Due to the fact that Facebook has chosen to involve software that will allow the theft of my personal information, I stated: at this date [insert date] in response to the new guidelines of Facebook, pursuant to articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data drawings, paintings, photos, texts etc…. published on my profile and my page. For commercial use of the foregoing my written consent is required at all times.
Those who read this text can do a copy/paste on their Facebook wall. This will allow them to place themselves under the protection of copyright.
By this statement, I tell Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, or take any other action against me on the basis of this profile and or its content. The actions mentioned above also apply to employees, students, agents and or other personnel under the direction of Facebook.
The content of my profile contains private information. The violation of my privacy is punished by the law (UCC 1-308 1-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All members are invited to publish a notice of this kind, or if they prefer, can copy and paste this version.
If you have not published this statement at least once, you tacitly allow the use of elements such as your photos as well as the information contained in the profile update.

Do these Status Updates have any Legal Effect?

Do these status updates help protect your information?  Do they have any legal effect? The short answer is no.  The reason is that a person cannot unilaterally change the terms of a contract.  A contract, by definition, requires the agreement of the parties.

When people first sign up to Facebook they are asked to agree to a contract or as Facebook calls it: “Terms“.  This type of contract, like most contracts people enter today, is called a “standard form contract“.  This means that the terms are standard to all who wish to sign up.  The terms are not negotiable.  It’s a “take it or leave it” option.  Facebook’s contract contains many terms regarding how Facebook uses your information and intellectual property.  It also contains terms on how the contract between the user and Facebook may be changed.

But Facebook Changes Their Contracts Unilaterally?

From time to time, Facebook changes its Terms. How can Facebook change it’s terms unilaterally, when a user cannot?  Because the User agreed to this amending formula at the time of signing up. In this sense, Facebook’s amendments are not unilateral.  The Facebook Terms state that in most cases they will give a user notice that the Terms will change and that  “Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.”  In other words, by using Facebook, you agree to allow them to change their Terms.

How to Protect Your Intellectual Property From Facebook?

Users who are concerned about how Facebook uses their data, should take some time to learn about Facebook’s policies.  Facebook has become more transparent in this regard.  Learning about Facebook’s policies may alleviate some concerns.

Ultimately, Facebook is a business.  And just like any business who makes you an offer, you can take it or leave it.  If you are unhappy with Facebook’s Terms, a better option than pasting legally meaningless jargon is to cancel your Facebook account.

Privacy Breaches Are Usually Not Worth Much Money

Toronto Privacy Lawyer Gil Zvulony recently spoke to Canadian Lawyer Magazine regarding the recent decision in McIntosh v. Legal Aid Ontario.  In that case the court awarded the plaintiff $7500 in damages for the tort of intrusion upon seclusion.

Gil Zvulony believes that the result is typical in that relatively minor privacy breaches will not result in a windfall damages award.  Most minor privacy breaches will fall in the realm of small claims court jurisdiction.  At the time of writing, all monetary claims under $25,000 must be brought in the Small Claims Court.  There can be negative consequences if a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court.  In such a case, the court may order that the plaintiff shall not recover any costs.  Such an outcome can result in a plaintiff paying more in legal fees than in what is actually recovered by way of judgment.   The lesson here is to have a hard look at the amount of damages in privacy breaches before commencing an action.

The article in Canadian Lawyer Magazine can be found here: Legal aid employee to pay $7,500 for intrusion upon seclusion

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User Based Insurance and Privacy

Toronto Privacy Lawyer, Gil Zvulony was a panelist at the Telematics Canada Conference 2014.   Read more

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Privacy, Tracking Devices, & Usage Based Auto Insurance

Canadian Privacy Lawyer, Gil Zvulony, recently discussed potential privacy concerns regarding the use of tracking devices used by some auto insurance companies.  The devices involved are called “Telematic” devices that can measure such things as a car’s location and speed.  Such devices, raise several questions such as:

  1. How is the consumer’s consent obtained?
  2. Is the consumer’s consent fully informed?
  3. Is consent obtained for other drivers who are not customers of the insurance company?
  4. Who owns the data collected?
  5. Can a consumer access the data?
  6. Can a consumer share the data?
  7. Can a consumer modify the data?
  8. Is the data portable?  I.e. Can the data be shared with a new insurance company?
  9. What security measures are in place to protect the data?
  10. Can the data be accessed by police?
  11. Is the data discoverable in civil proceedings?

 

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Legal Rights in a Photograph

By http://www.flickr.com/photos/byflickr/ By Byflickr, Rohan Kar (http://www.flickr.com/photos/byflickr/2584948850/) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Introduction

by Gil Zvulony

A photograph is two things in one: it is on the one hand a representation of something or someone, and then again it is its own work of art, separate from what or who it represents.  This raises, and has for a long time raised, some interesting issues with regard to the law.  Who owns the rights in a photograph, the person who commissioned the picture or the person who took the picture?  What rights does the subject of the photograph possess? (For a discussion of sharing photos on social media read: Facebook – Who owns My Photos)

There are many different rights in a photo.   A person pictured in a photograph may possess certain rights independently of the photographer’s right to his or her creation.  Canadian court cases have dealt with the question of whether photographing someone can be a violation of that person’s privacy, of whether using someone in a photograph is an infringement of that person’s right to trade-mark his or her image, and whether a photographer can re-use a photograph without getting the permission of the people in it.

Canadian law on rights in a photograph is always in flux.  As the technology and its uses change so do the legal questions that arise.

Copyright Law

Canada’s Copyright Act was changed in 2012.  One key change was that photographs were now treated as any other “artistic work” such as paintings or drawings.   Copyright law gives the owners of artistic works certain exclusive rights to exploit their works, such as reproducing the photograph or selling the photograph.  In the case of photography this means that the copyright owner of a photograph can, in most cases, prevent others from copying that photograph.  With the exception of photographs taken during the course of employment, the photographer will always be the owner of the copyright in a photograph.

Moral Rights

S. 14 of the Copyright Act also grants “moral rights” to an author, which prevent someone from making alterations to the author’s work if those alterations will affect “the integrity of the work,” and require the author to be given proper credit for the work.  The leading case on moral rights was Snow v The Eaton Centre Limited, et. al (1988) 70 CPR (2d) 105, where the Ontario High Court of Justice ruled that an artist who had sold his sculptures to the Eaton Centre had the right to keep them from making unauthorized changes to the work: even though they owned the physical objects, Snow still had rights over the artistic integrity of his creations.   This case can stand for the proposition that even if a photographer assigned copyright to his photographs (but did not waive his moral rights), the photograph can still maintain some artistic control over modifications/distortions of the original photograph.

The application of this principle to photographs was made in the Ontario Superior Court of Justice case of Ritchie v. Sawmill Creek Golf & Country Club.  In this case, Justice Ducharme dealt with the case of a photographer (the plaintiff, Mr. Ritchie) who had presented the defendant with a book of photographs he had taken.  One of the many issues in the case was Ritchie’s contention that his moral rights had been infringed when the defendants enlarged some of his photographs to display on posters: the “horrifying” quality of the enlargements, he contended, ruined the integrity of his work.

Ducharme J. concluded that Ritchie had not proven either head of moral rights infringement to his satisfaction.  In the case of the enlargements, Ritchie had not demonstrated that the enlargements would be considered of poor quality by the standard of the photography business; he had not tried, for example, to get experienced professional photographers to testify that the enlargements were badly done.  To demonstrate infringement of moral rights, a photographer would have to show not only that changes were made to the photograph, but that the changes were unreasonable and harmed the photo artistically.  This must be demonstrated not on the basis of the photographer’s personal opinion, but on evidence of the standards of the profession.

Rights of the Subject – Privacy and Publicity Rights

In some cases, the subject of the photograph may have certain rights as well as those of the copyright owner. The person who was photographed may have the right to suppress the publication of the photograph, or even to obtain damages, if it infringes on his or her rights.  There are two kinds of rights that can be involved here: the right of privacy, and the right of publicity.

Privacy rights prevent other people from seeing a person’s image unless he or she wants it to be seen.  Publicity rights, on the other hand, are about a person’s right to exploit his or her image, to create a public persona, to make money off his or her appearance.  If privacy rights give someone the right not to have their image presented to the public, publicity rights give them the right not to have it presented to the public before they get a chance to do it.

The Right to Privacy

In Aubry v. Editions Vice-Versa Inc. (1998), 50 C.R.R. (2d) 225, [1998] 1 S.C.R. 591, the plaintiff brought an action against a photographer and publisher for taking a picture of her as she was sitting on the steps of a building, and publishing it in a magazine without her consent.  She argued that this was a violation of her right to privacy under Quebec’s Charter.

The Supreme Court, in the jointly-written decision of several justices, ruled that the unauthorized taking of a photograph is, in fact, a violation of a person’s right to privacy if that person is the subject of the photograph, rather than an incidental character in it:

Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.

However, the court ruled that the plaintiff was only eligible to claim nominal damages, $2,000, for the violation of her privacy, as there had been no “moral prejudice” caused by the publication of the photo.  The court ruled that there must be a fairly high degree of “discomfort and upset” caused to the subject of a photograph in order for him or her to prove that the publication of the photograph was actually harmful.

The court’s ruling was, as previously mentioned, based on specific provisions in Quebec’s legislation, and thus might not be completely applicable to all other provinces.  But the tone of the Supreme Court’s discussion of the issue made it clear that the justices saw the issue as being broader than just the specific legislation; the judgment speaks in general terms of the importance of not “extending the photographer’s freedom at the expense of all others,” establishing a general principle that the freedom of a photographer to take pictures must be balanced with, and not permitted to override, the right of an individual to protect his or her privacy.

In 2012, the Ontario Court of Appeal adopted a new tort of invasion of privacy (formally called “Intrusion Upon Seclusion”) in the case of Jones v. Tsige.  While the Jones case did not deal with photographs, the court did give guidance as to when someone’s privacy could be violated.  The court stated that 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 a “reasonableness” limitation 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.

 Thus, it is safe to say that photographs taken in intimate or private situations (such as “revenge porn” or so called “up-skirt photos) violate the privacy rights of the persons in them.

Publicity Rights

A case that dealt with publicity rights in a photograph was Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 at p. 434, 80 D.L.R. (3d) 583.  The plaintiff was an athlete, and the defendant had put out a brochure which had used an image based on (but not directly copied from) a photograph of the plaintiff.  Even though the brochure did not directly represent the plaintiff, the court ruled that the plaintiff’s rights had been violated because the defendants had appropriated his “trade-mark pose,” and thus an element of his personality that he relied upon for publicity purposes.

Though the pose was referred to as a trade-mark, and theoretically the above situation could have been framed as a trade-mark violation (passing off the defendant’s camp as having been endorsed by the plaintiff), the decision was based less upon trade-mark rights than proprietary rights, namely the exclusive right to control the marketing of one’s image. In his decision, Henry J stated that “it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded.”  In other words, a person has a proprietary right in the ability to market and exploit his or her image.

In Gould Estate v. Stoddart Publishing Co. 1998 CanLII 5513 (ON C.A.) Finlayson J.A. dealt with the question of whether the subject of a photograph can sue for the tort of appropriation of personality.  Finlayson J.A. declined to rule on the issue of whether appropriating someone’s image could be a separate tort, which seemed to imply that even though Athans had suggested the possibility of a tort of appropriation of personality, later cases would restrict this tort to the narrow scope of misuse of someone’s image for marketing purposes.  In this particular case (where Glenn Gould’s estate was trying to prevent the re-use by a photographer of some photos that he had taken of Gould years before), he pointed out that the case could be settled decisively in the defendant’s favour simply by applying the principle that unless the subject’s image has been borrowed for commercial purposes, a subject’s rights in a photograph end with the consent to the taking of the photograph:

The owner of the negatives is the author and owner of the copyright in the photographs and the author of the written material in the book is the owner of the copyright in that written material. The subject of the photographs and the written materials has no proprietary interest whatsoever unless he or she had obtained an interest by express contract or implied agreement with the author. Looked at in this light, the concept of appropriation of personality has no application.

The subject of a photograph can also claim that by distributing a photo of him or her, a photographer is committing the tort of “passing off,” of making the public believe incorrectly that the subject is associated with certain goods or services.  If a photographer distributes photos of a celebrity, the public may mistakenly believe that the celebrity is associated with, or approves of, the photographer’s work.

This was the argument advanced in Salé v. Barr, [2003] A.J. No. 595, an Alberta case where figure skaters sued to stop a photographer from distributing photos he had taken of them.  The court ruled that the plaintiffs had a right to control the use of their trade-mark image, and that included the right not to have their image associated in the public’s mind with that photographer’s work.

By-standers

One other question about the rights of a person in a photograph is what happens when a person is not, in fact, the subject of a photograph, but is merely a sort of bystander, incidental to the real subject-matter.  The Supreme Court in Aubry suggested that if someone is not the subject of a photo, he or she does not need to approve his or her presence in it; no permission need be obtained from a person who is “an anonymous element of the scenery, even if it is technically possible to identify individuals in the photograph.”  The court did not clarify what would constitute an “element of the scenery,” nor did it deal with the contradiction inherent in the idea that someone could be simultaneously be anonymous and identifiable.

Rights of Models

In the United States, there have been cases dealing with the rights of models who pose for photographs and in whether they need to give their consent to the further use of such photographs.  One such case involved a Canadian corporation operating online, Perfect 10, Inc. v. Talisman Communications Inc., where Paez J. ruled that models, who assigned their rights of publicity to one company, had those rights violated when the photos were used by someone else for advertising purposes. There is no federal law on the issue, but state-level cases such as this one have established that while a model’s image is not in itself copyrightable, a model retains rights of privacy and publicity in his or her image even after the photograph is taken.  The primer on privacy and publicity by the Library of Congress sums up the prevailing rule as follows:

If no formal relationship (e.g., a release form signed by the subject) exists that permits the photographer to licence the use of the photograph for all uses or otherwise waives the subject’s, sitter’s or model’s rights, then the advertiser must seek permission from the subject of the photograph because the subject has retained both privacy and publicity rights in the use of their likeness.

This issue has not been dealt with much in Canada.  One of the few cases that dealt with the issue was the Quebec Court of Appeal’s decision in Malo v. Laoun, 2003 A.C.W.S.J. 8462.  The case involved a Quebec actress who posed for photographs to advertise a manufacturer of eyeglasses.  The defendant, who operated an optician’s store where the advertisements were displayed, gave permission for them to be displayed in a commercial directory, without obtaining the actress’s consent.  The Court of Appeal ruled that the plaintiff was entitled to compensation for economic and moral damages, and that her consent for one type of advertising did not create a right to use the photograph for any type of advertising.

In his decision, however, Dussault JJA adopted the principle that the plaintiff should not be awarded damages for “usurpation of artistic identity” as a separate tort.  While all this is based on the Quebec Civil Code rather than common law, it does suggest how Canadian courts might approach the issue in future: a person’s rights in his or her image do not end with giving consent to one type of exploitation, and consent must be obtained for any further type of exploitation, but the damage created must all fall under pre-existing tort headings.

Based on this, and on the Aubry decision, suggesting as it does that people must consent to the use of their image, it seems possible that Canadian law might eventually tend in the same direction as U.S. law, with the result that a photographer would be well advised to get models to sign release forms.  And since Canadian cases such as Athans have recognized a right to commercial exploitation of one’s own image, this principle could be used to argue that if the photographer intends to make more money from the model’s image, the model must share in this too.  On the other hand, the fact that the legislation is moving away from giving rights to anyone other than the photographer might suggest that models will eventually have fewer, not more, rights, so this issue could arguably develop in any number of directions.

Conclusion

Canadian law has moved to granting more and more rights to the person who takes the photograph, as opposed to the person who commissions it or the person who is in it.  The 2012 modifications to the Copyright Act grant broad rights to the creator of a photograph, and only very narrow rights to the person who pays for its creation.  As for the subject of the photograph, Canadian courts will not go (or at least have not gone) very far in granting rights to someone who is pictured in a photograph.  There might be a basic requirement to get the subject’s consent for the taking and initial use of the photograph, and there might be a requirement to get someone’s consent for the commercial exploitation of their image.  But if these conditions are satisfied, then the photographer’s copyright will be treated as absolute.  Just as the writer of a book has certain rights that usually supersede the rights of the publisher or the subject of the book, the photographer has rights that usually – not always, but usually – supersede the rights of others.

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Privacy Law: An Overview

By Everaldo Coelho (YellowIcon) [LGPL (http://www.gnu.org/licenses/lgpl.html)], via Wikimedia Commons

by Shaya Silber

As we move into an age where growing portions of our lives are becoming digitized, many holes are becoming apparent in these new information systems. A lot of these holes revolve around issues of personal information and privacy. Because this scenario is relatively new, many people including policy makers, academics, lawyers and so on, are grappling with the consequences. More importantly, many people are seeking avenues to remedy apparent wrongs. Legally speaking, when your privacy is violated, you have three options to consider.  These options will not apply to every situation so it is a good idea to get legal advice before taking legal action.  The first option is launching a complaint with the Federal Office of the Privacy Commissioner of Canada. The second option is launching a complaint with Ontario’s Information and Privacy Commissioner.  A complaint can be launched where someone’s personal information was collected, used or disclosed in an improper manner.  (These are not the only circumstances where a complaint may be launched.  For example, privacy legislation also speak about the ability to access and correct information). The third option is pursuing the matter via a court action. Unfortunately, courts rarely award damages in cases of privacy violations. Courts tend to award damages in more egregious circumstances. Even when courts do award damages, the amounts can be less than the cost of litigation. Depending on the case, a victim may opt to pursue different options.

1. Ontario – Information and Privacy Commissioner

The first avenue to consider is Ontario’s Information and Privacy Commissioner (IPC). Ontario’s Commissioner hears complaints that violate the Freedom of Information and Protection of Privacy Act (FIPPA), Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and in some circumstances Personal Health Information Protection Act (PHIPA). When a complaint is filed with the IPC, one of three things may happen. The complaint can be settled, dismissed or launched into an investigation. If an investigation is launched, the IPC will examine the situation and prepare a “Privacy Complaint Report.” The report is provided to the parties, and may contain recommendations such as implementing preventative measures so that a violation does not happen again. However, the Commission does not have the authority to award damages, nor is the report binding on the parties. At the moment, Ontario’s IPC only deals with violations of privacy where the alleged violation was made by a government body. (Health organizations can also be investigated by the IPC for the improper use of personal health records. Where a health organization misuses information that is not related to medical records, it would most likely not fall under the IPC’s mandate. Rather, it would more likely fall under the OPC’s mandate.) In a recent exchange with an IPC representative, I was informed that their mandate might be expanded to examine beyond the scope of government violations. However, for now it does not apply to violations of privacy between individuals or businesses.

2. Federal – Office of the Privacy Commissioner of Canada

Another avenue to consider is the Federal Office of the Privacy Commissioner of Canada (OPC). The OPC oversees the implementation of the Personal Information Protection and Electronic Documents Act (PIPEDA), and the Privacy Act. Unlike its Ontario counterpart, the OPC’s mandate extends beyond privacy violations by government bodies. The OPC examines complaints that allege privacy violations by commercial organizations and individuals, with a few exceptions.  PIPEDA provides the right for individuals to know when and why their personal information is being collected, used, or disclosed. It also provides recourse in situations where personal information is used for any purpose other than what was consented to. When a complaint is filed with the OPC, an investigation may be launched. The Commissioner’s investigation is impartial with respect to the parties involved. Upon concluding the investigation, the Commissioner will prepare a report. The report may contain recommendations for the parties. The report may also request that the organization in question provide notice of any action taken in response to the recommendations. Finally, in some circumstances, the report may discuss recourses, if any, that may be able available at the Federal Court. In most cases, courts are unwilling to award any monetary damages pursuant to violations of PIPEDA. However, in a recent case, the Federal Court awarded $5,000.00 to an individual who was denied a loan due to misleading information provided by the credit bureau. This seems to indicate a new approach to privacy law in these circumstances. It will be interesting to see how future cases apply damages in these circumstances.

3. Intrusion Upon Seclusion – Court Action

Until recently, there were not many options available for individuals whose privacy was violated by another individual (as opposed to a business or governmental organization). That has recently changed. In Jones v. Tsige, (“Jones”) the court recognized a new tort. The cause of action has been coined “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 more than 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 a “reasonableness” limitation 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.

Conclusion

With the rise of privacy concerns in Canada, the law seems to be catching up. This area of law is evolving at a rapid pace.  Businesses and individuals alike are now caught by recent developments in the law.

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In the News – Using Technology to Track your Cheating Partner

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Toronto Internet Lawyer Shaya Silber’s opinion was recently sought by City TV with respect to the legality of using technology to track your cheating partner.

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Privacy Law and the Workplace: Job Applications

https://www.flickr.com/photos/111692634@N04/15327739193/

 

by Shaya Silber, Toronto Privacy Lawyer

Employers have access to unprecedented amounts of information on their employees and job candidates. Many people, especially young people, don’t realize how much information they are publishing about themselves, and what the possible implications are.  The Onion posted a video about how every presidential candidate in 2040 has already been disqualified because of internet posts that will come back to haunt them. While the Onion’s clip is obviously a spoof, there is some truth to it.

Any post or comment that is posted on Facebook, Twitter or other social media has the potential to remain online and available to the public indefinitely. What may seem like a humorous or harmless post to an 18-year-old college freshman, might be viewed differently by a job recruiter down the road. Careless posting can be serious, resulting in lost jobs and other opportunities.

However, a number of stories have surfaced recently about employers asking job candidates for their Facebook passwords in order to gain access to information that would otherwise be considered private.

In response, the Information and Privacy Commissioner of Ontario (the IPC), recently put out a report on privacy in the workplace. The report discusses how the web has become a central tool for human resource professionals in vetting potential job candidates.

Information that is available online to the public is fair game for employers. However, employers should be cautious about demanding Facebook passwords from employers. This may lead to claims, including lawsuits for violation of privacy. It is too early to determine whether the tort of Intrusion upon Seclusion applies to cases like this, as it has not yet been tested in the courts.

Furthermore, employers should be cautious regarding the amount of information they gather, as well as the impact said information has on the hiring decision.  Decisions based on information gathered online, such as a candidate’s social networking account, could potentially lead to a human rights complaint. The report states that:

human rights and privacy laws provide stronger protections for job applicants. Employers cannot ask for information that may directly or indirectly reveal a prohibited ground of discrimination.

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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.