Canada: Privacy Through The Ages – A Review Of Ontario's Privacy Laws (Part 1)

In today's digital age, there is increasing concern about individual privacy. Companies and organizations collect an immense amount of personal data, which increases the risk of a significant privacy breach if the security of that data is compromised.

To varying degrees, Canadian courts have responded to this reality. The Supreme Court of Canada has repeatedly stated that protection of privacy is the rationale underlying section 8 of the Canadian Charter of Rights and Freedoms.

In Ontario, four distinct privacy-related torts have been recognized, putting the province ahead of all others in creating causes of action to recognize the ever-increasing value of personal data and privacy.

Join us in this five-part series examining the cases that established Ontario's four privacy torts and how these torts may be advanced (or defended) in our digital age.

PART 1: MY IMAGE, MY CHOICE

KROUSE V CHRYSLER CANADA LTD. (1973), 1 OR (2D) 225, 40 DLR (3D) 15 (CA)

Krouse was the first case in Ontario to recognize a common-law tort for breach of an individual's privacy interest. The tort was described as the appropriation, for the defendant's advantage, of the plaintiff's name, likeness, or personality.

FACTUAL BACKGROUND

The plaintiff, Krouse, was a player on the Hamilton Tiger-Cats in the Canadian Football League (CFL). Chrysler created a marketing tool that used a photograph of football players alongside photographs of Chrysler vehicles. The focus of the photograph was on a defensive player wearing the colours of the Hamilton team with the number 14 on his jersey. Krouse played the position of defensive back and always wore the number 14. No other players in the photo were identifiable.

On this basis, Krouse argued that Chrysler had appropriated his image without his consent for its commercial advantage. He alleged the photo acted as an implied endorsement by him of Chrysler products which in turn limited his capacity to use his image for his own benefit.

THE TORT OF APPROPRIATION OF ONE'S PERSONALITY EXISTS, BUT WAS NOT ESTABLISHED IN THIS CASE

The Ontario Court of Appeal held that there was "a remedy for the appropriation for commercial purposes of another's likeness, voice, or personality."

However, in order to succeed, Krouse would need to show both that the purpose of Chrysler using his picture was to attract attention to their products for their commercial advantage and that the picture is an express or implied endorsement by Krouse of Chrysler's products. On the facts of this case, the claim was not established.

First, the court found that Chrysler was appropriating the CFL brand rather than Krouse personally. Chrysler simply sought to gain an advantage by associating itself with football and not any particular team or player.

Second, the court saw no basis to find that the picture implied that Krouse was endorsing Chrysler products. If Krouse was shown standing beside or sitting in one of Chrysler's cars, then the inference that he was endorsing its products may have been made. However, simply having an action shot of a football game with a player loosely resembling Krouse near other pictures of Chrysler products did not lead to this inference.

Third, by virtue of being a professional athlete, Krouse exposes himself to public view and therefore has a reduced expectation of privacy.

This case opened the door for future jurisprudence to expand on this area of law and provide more remedies for breaches of privacy in recognition of the importance that privacy has in a free and democratic society. These more recent cases are explored in our next installments of the series.