In a recent trilogy of decisions, the Ontario Court of Appeal held that organizations do not breach the tort of intrusion upon seclusion where they have been subject to a data breach caused by a third-party "hacker" or independent "threat actor".
The Privacy Tort of Intrusion upon Seclusion
In its 2012 decision of Jones v. Tsige, the Ontario Court of Appeal first recognized the common law tort of intrusion upon seclusion. Since the tort's recognition a decade ago, recurring questions have been raised across dozens of class action lawsuits regarding how this tort should be interpreted and applied.
One key question is whether organizations are liable for the tort of intrusion upon seclusion where independent threat actors gain unauthorized access to personal information in the organizations' control. Such organizations (often called "Database Defendants") are sued in lieu of the hackers responsible for the breach, as the hackers are often difficult to identify and Database Defendants have sufficiently "deep pockets" to compensate the plaintiffs' perceived and actual losses.
Despite this issue being frequently raised in Canadian lawsuits, Ontario courts have refrained from deciding whether Database Defendants can be found liable for failing to adequately protect data from being breached by an independent or third-party hacker. The resulting uncertainty has caused significant concern for organizations subject to third-party data breaches, as they remain unaware of the scope of their potential liability.
Finally, on November 25, 2022, the Ontario Court of Appeal directly addressed the issue of Database Defendants' liability in a trio of decisions arising out of three separate appeals: Owsianik v. Equifax Canada Co., 2022 ONCA 813 ("Owsianik"); Obodo v. Trans Union of Canada, Inc., 2022 ONCA 814 ("Obodo"); and Winder v. Marriott International, Inc., 2022 ONCA 815 ("Winder"). Given the shared issues and similar facts at hand, the Court set out the majority of its reasoning in Owsianik and addressed a few additional issues in Obodo and Winder, respectively.
The three appeals in the decision trilogy related to proposed class actions in which representative plaintiffs alleged breaches of the tort of intrusion upon seclusion by Database Defendants. The defendants in each case allegedly failed to take proper steps to store and secure data within their custody from unauthorized access by third-party hackers.
In prior litigation, the defendants argued that the lawsuits against them should not be certified as class actions because the plaintiffs' claims did not disclose a proper cause of action as required by section 5(1)(a) of the Class Proceedings Act, 1992.
The representative plaintiff in Owsianik initially succeeded in certifying an intrusion upon seclusion claim as part of a class action. However, the Ontario Divisional Court reversed the certification decision and held that the tort did not apply as the information in question had been accessed by a third-party hacker acting independently of the defendant.
The Decision in Owsianik
In Owsianik, the Ontario Court of Appeal confirmed the following test from Jones v. Tsige for the tort of intrusion upon seclusion:
- The Conduct Requirement: the defendant must have invaded or intruded upon the plaintiff's private affairs or concerns, without lawful excuse;
- The State of Mind Requirement: the conduct which constitutes the intrusion or invasion must have been done intentionally or recklessly; and
- The Consequence Requirement: a reasonable person would regard the invasion of privacy as highly offensive, causing distress, humiliation, or anguish.
Applying this test, the Court held that Database Defendants are not liable for intrusion upon seclusion where independent threat actors or third-party hackers access data without authorization.
First, the Court concluded the defendant did not commit an "invasion" or "intrusion" into the putative class members' private affairs. The representative plaintiff alleged that the defendant had breached the tort of intrusion upon seclusion by failing to "take appropriate steps to guard against unauthorized access to sensitive financial information involving the Class Members' private affairs or concerns." The Court, however, found that, at most, the defendant had failed to meet its obligations to the plaintiffs to protect their privacy interests. There was no conduct by the defendant that amounted to an intrusion into or invasion of the plaintiff's privacy, so the Conduct Requirement was not established.
Second, the Court rejected the representative plaintiff's argument that the data breach was caused by the defendant's recklessness. Under the State of Mind Requirement, the privacy-invading conduct must be done intentionally or recklessly. As the defendant had not engaged in an invasion of privacy, any recklessness relating to the defendant's other conduct could not satisfy the State of Mind Requirement.
The Court also firmly refused to extend the tort of intrusion upon seclusion to apply to entities that fail to adequately protect information in their possession. According to the Court, to impose liability of Database Defendants for the tortious conduct of unknown hackers would be a "giant step in a very different direction" from how the law had developed.
The foregoing reasoning was relied upon by the Court in Obodo and Winder, and resulted in the dismissal of all three appeals in the trilogy.
Check the Box
While this trilogy of decisions brings some relief, organizations should remain mindful that they may still face liability in relation to data breaches that occur. For instance, where a threat actor is an employee or otherwise affiliated with the organization, the organization may be vicariously liable for the actor's tortious conduct. Further, organizations might be liable for negligence or violations of their contractual/statutory obligations if a data breach arises from the organization's inadequate storage, protection, disposition, or transfer of information.
To mitigate these risks, organizations storing large quantities of data should, in consultation with legal counsel, take proactive steps to protect the personal information in their custody and to prevent and detect data breaches where possible. This may include implementing policies and procedures to prevent unauthorized data access and training employees on cybersecurity laws and best practices.
Originally published December 9, 2022
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