Canada: The Interplay Between BC's Statutory Tort Of Privacy And The Tort Of Defamation

Last Updated: August 15 2017
Article by Karen R. Zimmer

Defamation law and breach of privacy law are separate and distinct, but the two torts are occasionally brought before the courts in the same matter. An attack on an individual's reputation can be done in a manner that also contravenes privacy rights. That said, the courts have little patience for litigants who confuse the two issues or who plead both causes of action when only one is appropriate. Accordingly, understanding the differences between these torts and the legal principles that inform them is paramount when dealing with an action in this area of the law.

For a successful defamation claim, a plaintiff has to establish three elements: that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; that the words referred to the plaintiff; and that the words were published.1 This is a relatively low threshold and most defamation actions are decided on whether the defendant can make out one or more of the well-developed defences to a defamation action, such as truth, qualified privilege, fair comments or responsible communications. (For a discussion about defences to a defamation claim, please see the blog post entitled "What they wish they knew before publishing").

In comparison to the law on defamation, the law on privacy in Canada is in its infancy.2 There is currently no common law tort of invasion or breach of privacy in British Columbia.3 Instead, we have a statutory tort of privacy through the Privacy Act, R.S.B.C. 1996, c. 373 (the "Act"). Section 1 of the Act provides:

1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

The nature and degree of privacy to which a person is entitled is that which is reasonable in the circumstances and a court must consider the alleged breach of privacy contextually. Importantly, the scope of this right to privacy is fluid. As put by Justice Sharpe of the Ontario Court of Appeal, certain provincial legislatures, including BC's, have "proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right".4 This leaves significant room for argument by parties bringing and defending these claims.

Manitoba, Saskatchewan, and Newfoundland have all enacted similar legislation that creates a statutory tort of privacy.5 Under Quebec law, the right to privacy is protected under the Civil Code of Quebec and by Quebec's Charter of Human Rights and Freedoms.6

While Ontario lacks equivalent legislation to BC's, the Court of Appeal confirmed the existence of a common law tort of intrusion upon seclusion in Ontario in Jones v. Tsige, 2012 ONCA 32. The Court highlighted that allowing a cause of action for an invasion of privacy is particularly important with how significantly technology has impacted the ability to protect one's personal information.7

Causes of action involving BC's tort of privacy are often brought under section 1(4) of the Act, which specifically addresses eavesdropping and surveillance.

For example, in Wasserman v. Hall, 2009 BCSC 1318 the defendant was awarded damages against the plaintiff, his neighbour, who installed surveillance cameras that overlooked the defendant's yard in connection with their heated residential fence dispute.8 In Watts v. Klaemt, 2007 BCSC 662 the plaintiff was awarded $30,000 in damages after the defendant had monitored and recorded her phone line for over a year and then turned over information gathered during that time period to the plaintiff's employer, resulting in her termination.

Section 3(2) of the Act, which prohibits one from using the name or portrait of another for advertising without that person's consent, is at issue in the ongoing Douez v. Facebook class action. The plaintiffs in this case are asserting that Facebook used the name and picture of Ms. Douez and potentially of 1.8 million other British Columbians without consent. This case has attracted considerable attention as a result of the Supreme Court of Canada's June 2017 decision, Douez v. Facebook, Inc., 2017 SCC 33, in which Facebook was unsuccessful in ousting Ms. Douez's class action from the reach of our British Columbia Court.

Facebook attempted to do so by relying on the forum selection clause contained in its Terms of Use pursuant to which every user of Facebook agrees, by a click of the mouse, to submit to the California Court and California laws for any dispute that may arise. The Supreme Court of Canada's decision not to enforce this forum selection clause is discussed in a recent blog post. Ms. Douez's class action alleging the breach of section 3(2) of the Act will now be pursued through our British Columbia Court.

Matters brought under sections 1(4) and 3(2) generally do not involve defamation, since the disputes are over intrusions into the plaintiffs' lives rather than the dissemination of information. As noted by Chief Justice McLachlin of the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, privacy protection does not figure prominently in defamation jurisprudence in part because "defamation law is concerned with providing recourse against false injurious statements, while the protection of privacy typically focuses on keeping true information from the public gaze".9

However, cases involving both defamation and breach of privacy are coming up more and more. The courts take care to consider the two issues separately, so it is critical to make distinct, well-reasoned arguments.

In Griffin v. Sullivan, 2008 BCSC 827, the plaintiff successfully argued that the defendant breached his privacy and defamed him. It was held that the defendant improperly obtained the plaintiff's name and other personal information, attached it to defamatory statements regarding the plaintiff, and published it on the Internet. The judge was careful to analyze the law of defamation and the law on breach of privacy separately and broke down the plaintiff's damage award accordingly.

The plaintiff in Hollinsworth v. BCTV, 1996 CarswellBC 2820, [1996] B.C.J. No. 2638 (S.C.), aff'd in (1998) 59 B.C.L.R. (3d) 121 (C.A.), had undergone surgery to correct his baldness. In doing so, he signed a release permitting the doctor to film the procedure and share the recording with other physicians for training purposes only. Seven years later, BCTV was doing a story on baldness and its treatment and got in contact with Look International, an organization which the plaintiff's doctor had released the training video to. Look International provided the video to BCTV and lied about having permission from the plaintiff to do so. BCTV aired the clip, which showed the plaintiff's full face for approximately three seconds.

The plaintiff brought an action for libel and for breach of privacy. He was not successful in his libel claim, because the court found that the video was true – he had undergone treatment for baldness. However, the plaintiff was successful on the grounds of breach of confidentiality and breach of his right to privacy under the Act against Look International. Again, the judge considered the issues separately and distinctly.

These issues also come up in more protracted, complex disputes. In Nesbitt v. Neufeld, 2010 BCSC 1605, aff'd in 2011 BCCA 529, the defendant, Ms. Neufeld, sought damages from the plaintiff, Dr. Nesbitt, for defamation and breach of privacy in her counterclaim. The plaintiff engaged in inappropriate conduct throughout the course of the custody dispute, including: faxing intimate email exchanges Ms. Neufeld had had with a subsequent partner to the partner's work repeatedly; writing letters to the Rotary Club Ms. Neufeld belonged to suggesting that she was mentally unstable, sexually deviant, lied about him in court, and was exposing their daughter to pedophiles; sending letters to the Ministry of Child and Family Development suggesting the same; posting a video to YouTube about Ms. Neufeld; creating two malicious websites about her; and so on.

The Court was careful to consider the defendant's claims for defamation and breach of privacy discretely. It found the documents written by the plaintiff about the defendant to be defamatory and the dissemination of the defendant's personal email correspondence to be a breach of privacy under the Act. Although the two issues were considered separately, the Court awarded global damages of $40,000 for both torts.

If you are thinking of bringing a defamation claim in addition to a breach of privacy claim, or if you are the defendant in an action where both claims have been brought against you, remember that although there may be some overlap, the courts consider the two issues independently of one another. Keep in mind that the courts tend to have minimal tolerance for plaintiffs that plead multiple unnecessary causes of action. Accordingly, attempts to inappropriately "dress up" a defamation claim as a breach of privacy claim as well, or vice versa, are ill-advised.10 We recommend that you consider retaining counsel that can highlight such issues for the court and effectively navigate these complex areas of the law if you find yourself in the unfortunate position of having to mount or defend such a claim.

The assistance of Emma Waterman, temporary articled student, in preparation of this post is gratefully acknowledged.


1. Lougheed Estate v. Wilson, 2017 BCSC 1366 at para. 155

2. Raymond Brown, Brown on Defamation, 2nd ed (Toronto: Thomson Reuters Canada) at 1.6

3. Hung v. Gardiner, 2003 BCCA 257

4. Jones v. Tsige, 2012 ONCA 32 at para. 54

5. At para. 52

6. Ibid at para. 53

7. Ibid at paras. 65-67

8. See also Heckert v. 5470 Investments Ltd., 2008 BCSC 1298, wherein the plaintiff was also awarded $3,500 after surveillance cameras were installed directly outside of her front door by her apartment's building management to specifically track her movements.

9. At para. 59

10. Niemela v. Malamas & Niemela v. Google Inc., 2015 BCSC 1024 at para. 51

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Karen R. Zimmer
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions