II. LIABILITY ISSUES
A. Employing a video shot of a person jogging on a public jogging path for a commercial sales-pitch video was found to establish the privacy tort of intrusion upon seclusion.
Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435 (Ont.S.C. Small Claims), per LeClaire, D.J. [4257]
I. FACTS AND ISSUES
The Defendant Waterbridge Media "Waterbridge" was
commissioned to produce a sales video for a real estate developer
to market an unbuilt residential condominium project in an Ottawa
neighborhood. The video showcased the local area including
restaurants, coffee shops, public transit points, cycling paths,
jogging trails and other local amenities. Waterbridge described the
real estate developer in question as a "'hands-on'
client which [would] choose how and where to shoot in Westboro,
which coordinated most locations".
In the summer or fall of 2014, the Plaintiff Vanderveen was video
recorded while jogging on a walking trail. After editing, she
appeared in the resulting publicity video for two seconds on the
right third of a split screen. The left third contained an action
shot of a male cyclist on a bicycle. The middle third was an action
shot of a male holding a coffee cup with a coffee shop in the
background.
In the fall of 2015, one of Vanderveen's friends saw the video
and recognized Vanderveen. She brought it to the attention of
Vanderveen who immediately contacted Waterbridge with respect to
her objection to having been video recorded. She insisted that her
image be removed from the video recording.
There followed "a series of e-mail exchanges between
Vanderveen and Waterbridge some of which can be described as
impolite, acerbic, and insulting", which was the basis of
Vanderveen's claim for punitive damages.
Vanderveen was distraught at discovering that her image was being
employed in this video without her consent. She testified that she
began jogging after having gained weight following childbirth. When
she saw the video she claimed to have "immediately felt shock
and confusion". She "described herself as being
self-conscious and said that the overweight pictures of her caused
her discomfort and anxiety and that the jogging outfit that she was
wearing in the video would now fall off given the weight loss
obtained as a result of training for and participating in Ironman
triathlons". The Court found that the "image of herself
in the video is clearly not the image she wished portrayed
publicly".
The video was removed from the real estate developer's website
within a week of it being brought to Waterbridge's attention
and was removed from YouTube within a few days.
Counsel for Waterbridge argued that it believed that there is no
expectation of privacy with respect to people participating in
activities in public locations. Waterbridge's officer also
testified that the focus of the video was on the "environment,
river and geography and not the people". Waterbridge argued
that it was impractical to obtain consents from people being video
recorded when a number of people are recorded and only a very few
end up in the ultimate video after editing. Waterbridge
acknowledged that since the event in question people are now
approached ahead of time to be advised of their role in the making
of the video.
Vanderveen claimed for breach of privacy (intrusion upon
seclusion), appropriation of personality, seeking pecuniary and
punitive damages.
For Vanderveen; compensatory damages of $4,100 dollars awarded; no award for punitive damages.
- The Court recognized the Tort of intrusion upon seclusion as recognized in Jones v. Tsige, 2012 ONCA 32. The Court summarized the elements of the cause of action, as had been set out in the Jones case: [15] Sharpe, J. went on to set out the elements of the action for intrusion upon seclusion in the following terms:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, Vanderveen's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum."
- The Court held that it had "no
hesitation" in finding that the elements of the tort of
intrusion upon seclusion had been established. The Defendant's
conduct in video recording Vanderveen was intentional and there was
no legal justification for recording her while running. The Court
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 Vanderveen
testified as to the distress, humiliation or anguish that it caused
her" (paragraph 16). The Court held that the elements of the
tort "would apply to capturing the persona or likeness of an
individual and using it for commercial purposes without
consent" (paragraph 17).
- The Court rejected the defence
argument that the focus of the recording was on the environment,
and not the people, noting that "people are present and
central to the location and the picture" and that the
"photographer was not just filming a moving river, he or she
was waiting for a runner to jog along the adjacent jogging trail to
advertise the possibility of the particular activity in
Westboro" (paragraph 10).
- The Court rejected the argument that recording Vanderveen in a public place was not a violation of privacy:
- The Court rejected the defence
argument that the focus of the recording was on the environment,
and not the people, noting that "people are present and
central to the location and the picture" and that the
"photographer was not just filming a moving river, he or she
was waiting for a runner to jog along the adjacent jogging trail to
advertise the possibility of the particular activity in
Westboro" (paragraph 10).
- The Court rejected Waterbridge's argument that it would have been impractical to obtain consents from people being video recorded in public places:
- In assessing damages, the Court noted the factors that were to be taken into account, as set out in Jones v. Tsige:
- the nature, incidence and occasion of
the defendant's wrongful act;
- the effect of the wrong on the
plaintiff's health, welfare, social, business or financial
position;
- any relationship, whether domestic or
otherwise, between the parties;
- any distress, annoyance or
embarrassment suffered by the plaintiff arising from the wrong;
and
- the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
- Applying those factors in this case,
the Court concluded that a $4,000 amount for breach of privacy
should be awarded and a further $100 for appropriation of
personality. The Court noted that Vanderveen was "on the
screen for two seconds", that publication of her image had
been "imposed upon her" in the context of a "
for-profit commercial enterprise". Court also noted that the
video was discontinued and removed completely from the internet
within a week. Keeping in mind that the court in
Jones indicated an upper limit of $20,000
for damages in such a case, and awarded $10,000 in that case,
$4,000 was justified here.
- The Court declined to award punitive damages with respect to the exchange of emails between Vanderveen and Waterbridge when Vanderveen initially insisted that her image be removed. The Court held that the exchange of emails was a mutual "misunderstanding and miscommunication" between the parties and did not justify punitive damages per Whiten v. Pilot Insurance Co., 2002 SCC 18.
III. COMMENTARY:
I note that the Court also awarded $100 in damages for the Tort of appropriation of personality, which appears to be the fourth of the privacy Torts recognized in the United States and summarized in the article that has been seen as properly defining these privacy Torts: WL Prosser privacy (1960) 48 California Law Review, 385. Unfortunately, there was no discussion of the law with respect to that particular tort but suggests that it has been recognized by the Court.
With respect, the Court's conclusion that a reasonable person would find the Defendant's conduct in this case to be highly offensive, which is an element of the tort which Vanderveen must prove is questionable. That conclusion would be even more suspect if the recording and dissemination of the video were not part of a commercial activity. The Court relied heavily on a civil law precedent from Quebec (Aubry v. Vice-Versa [Aubry v. Les Editions Vice-Versa [1998] 1 S.C.R. 591) which is not binding in the other common law Canadian jurisdictions. Vanderveen was carrying on her run in public for the world to see. In our view, this case may not be followed in a common law province, especially where the Defendant's conduct was not part of a commercial activity.
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