Originally published on CyberInquirer.
Jeremy Bentham used to refer to the common law as the "dog law". As he explains it, "whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.".
Insofar as the tort of invasion of privacy in Canada is concerned, Jeremy Bentham was arguably right. Aside from the province of Quebec, which is governed by a civil law system, and a few other provinces in Canada which have benefited from a statutorily enacted tort of invasion of privacy, lower Courts have been divided over the existence of a free-standing tort of invasion of privacy at common law. The recent decision Jones v. Tsige (2012) by the Ontario Court of Appeal is the first to confirm that what used to be an embryonic tort of invasion of privacy is now alive and well in Canada
The result in Jones v. Tsige was the next logical step in a long history of debate that began in the U.S. Following a highly influential article published by Warren and Brandeis in 1890 in the Harvard Law Review, in which they discussed the importance of protecting privacy in the face of numerous privacy invasive "mechanical devices", a substantial amount of judicial and academic ink was spilt on the right to privacy in the U.S. Arguably the first American decision to recognize a tort of invasion of privacy was Pavesich v. New England Life Ins. Col. (1904), which recognized privacy as a natural right grounded in the right to liberty. In yet another seminal article published in the California Law Review in 1969, William Prosser affirmed that what was emerging was not a single privacy tort but rather four different privacy interests, one of which included "intrusion upon seclusion".
The American model slowly found fertile grounds in Commonwealth countries. Drawing upon Warren and Brandeis, Pavesich, and Prosser's "complex of four", the District Court of Queensland, Australia, affirmed in Gross v. Pervis (2003) that in light of modern technologies, recognizing an actionable right for invasion of privacy was a "logical and desirable step". In New Zealand, the decision Hosking v. Runting (2003) found that it was "legally preferable" and "better for modern society" to recognize a "self contained and stand-alone common law cause of action to be known as invasion of privacy". In Naomi Campbell v. The Mirror (2004), the English House of Lords also underscored privacy as the heart of liberty in modern society, and recognized a "duty of confidence" whenever a person receives information about an individual's private life.
The experience in these three overseas common law jurisdictions undoubtedly influenced the development of a tort of invasion of privacy in Canada. The clearest statement to this effect was issued by the Ontario Superior Court in Somwar v. McDonald's Restaurant Canada Ltd. (2006). In this decision, the Court held that protecting privacy by providing a common law remedy would be an "incremental revision" and "logical extension" of the existing jurisprudence, and found that the tort of invasion of privacy fell within Prosser's first category of invasion of privacy, that is, intrusion upon seclusion. This line of reasoning was followed by a series of subsequent cases, including Shred-Tech Corp v. Viveen (2006), in which the Ontario court held that recognition of a tort of invasion of privacy was the logical result of the acknowledgement of privacy rights.
Of greater influence to the recent Jones v. Tsige decision, however, is s. 52 (1) of the Canadian Charter, which states that: "The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". As the Supreme Court of Canada rightly stated in Hill v. Church of Scientology: "the Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system. It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter." S. 7 and 8 of the Charter recognize privacy as an important part of Canadian values.
Considering the one hundred and twenty years of debate regarding the existence of a tort of invasion of privacy, the very reason why Jeremy Bentham held such critical views towards the common law, the Ontario Court of Appeal was justified in recognizing, in Jones v. Tsige, that in Canada, a person 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." How the common law tort of invasion of privacy will apply in a rapidly evolving, technologically advanced, and interconnected information economy will undoubtedly be subject to many more years of debate.
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