Persons and businesses that routinely photograph or film individuals in public spaces should consider requesting written consents from those individuals before publishing their images – especially in any publication for commercial purposes. This may include images published on Twitter, Facebook or other social media platforms for commercial purposes.
While individuals in Quebec have long enjoyed a protected right to their image, similar legislation has never been enacted in Ontario or federally. However, Justice Roger Leclaire of the Ontario Superior Court issued a decision in November 2017 in which he effectively adopted Quebec law to make this right part of the common law in Ontario: Vanderveen v. Waterbridge Media Inc. (2017) 287 ACWS(3d) 789.
The facts of the case are simple and, in all likelihood, extremely common. The defendant was hired to develop a sales video to promote a new condominium project which showcased the lifestyle enjoyed by others already living in the neighbourhood. The plaintiff was filmed while jogging on a walking trail in the neighborhood. She noticed the cameras filming and tried to obstruct her face, but otherwise did not interact with the defendant when she was filmed. A few months later, the plaintiff discovered her image on a web site promoting the condominium project and complained. Her image was removed one week later.
As a starting point, Justice Leclaire relied on the recently recognized “invasion of privacy” which was recognized as a common law offence in 2012. The Ontario Court of Appeal described this new offence as follows:
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: Jones v. Tsige (2012) ONCA 32.
On the facts of this case, Justice Leclaire finds that the defendant’s conduct was admittedly intentional, there existed no legal justification for filming the plaintiff while jogging and a reasonable person would regard the invasion of privacy as highly offensive. In particular, he found that “capturing the persona or likeness of an individual and using it for commercial purposes without consent” constitutes an invasion of privacy. Justice Leclaire further found that the plaintiff was not “unusually concerned or unduly sensitive” in objecting to this use of her image.
Finally, Justice Leclaire rejected the defence that obtaining a consent from the plaintiff was not practical in the circumstances. In this regard, the defendant claimed that a relatively high number of individuals may be filmed for such a project, but only a few would appear in the final edited product. In Justice Leclaire’s view, the right to privacy “prevails over any non-public interest, commercially motivated and deliberately invasive activity”. In this regard, Justice Leclaire explicitly relied on a decision of the Supreme Court of Canada applying the legislation of Quebec which similarly rejected such a defence:
To accept such an exception would, in fact, amount to accepting that the photographer’s right is unlimited, provided that the photograph is taken in a public place, thereby extending the photographer’s freedom at the expense of that of others. We reject this point of view: Aubry c. Editions Vice Versa Inc. (1998) 1 SCR 591
Presumably, a “public interest” exception would be recognized for images published in news media. However, the outcome may be more uncertain if an image originally published in news media is later published for other commercial purposes.
In the end, Justice Leclaire awarded the plaintiff $4,000 in damages for breach of privacy and $100 for appropriation of personality (on the assumption that this would have been the costs of hiring an actor), but denied the claim for punitive damages.
While this is only a decision of the trial court and has not been tested by either the court of appeal or the Supreme Court of Canada, it is a reflection of the fact that privacy law is undergoing rapid development in our digital age. Longstanding assumptions as to what is legally permissible may need to be re-evaluated to consider whether a ‘reasonable person’ in today’s world would object.