This document summarizes recent developments in privacy tort law as it relates to private investigators. It discusses two key cases: Jones v. Tsige established the tort of intrusion upon seclusion, while Jane Doe v. ND established the separate tort of public disclosure. The document outlines the elements and rationale of these torts, and examines how they may affect private investigators both positively in cases of legitimate investigations but also negatively in cases of illegitimate invasions of privacy. A framework is presented for determining liability by balancing public and private interests. Examples of both legitimate and illegitimate private investigations are also summarized.

1. Omar Ha-Redeye May 3, 2016
AAS, BHA (Hons.), PGCert, JD, LLM
CNMT, RT(N)(ARRT)
New and Newer Privacy Torts:
Public Disclosure and the Next Frontier

2. • Privacy law and Private Investigators
• Jones v. Tsige
• The formal establishment of privacy torts and intrusion upon seclusion:
• Jane Doe 464533 v. ND
• Public disclosure
• Applications of these new torts regarding Private Investigators
• Potential liability under these new torts
• Examples of Legitimate investigations
• Exmaples of Illegitimate investigations
• Elements the Court considers for liability
• The next frontier – privacy in the technological era
• Conclusion
Overview

3. • In recent years, Privacy Legislations have been used as a shield against obtaining
private information. However, Statutes such as PIPEDA has limited jurisdiction,
especially in civil tort litigations.
• The Courts confirmed, in the past, investigatory tools such as surveillance are
legitimate tools in some circumstances.
• Druken v R.G. Fewer and Associates Inc. [1998] N.J. No. 312
• Amalgamated Transit Union Local No. 569 v Edmonton (City), 2004 ABQB 280
• Lawful activities of private investigators are generally not caught by application of
privacy legislation.
Privacy and Private Investigators

4. • On the other hand, the trend to the protection of personal information in terms of
civil liability has been moving towards certainty
• Historically, legal actions around privacy:
• stemmed from concepts of trespass in the common law, and
• Were recognized only actionable where stipulated by statute law
• Aspects of Privacy have long been protected against actions such as breach of
confidence, defamation, breach of copyright, nuisance and various property rights,
• But the right of action for breach of privacy continued to remain uncertain for the
past 120 years of debate
Privacy and Private Investigators

5. • Jones v. Tsige, 2012 ONCA 32 (CanLII)
• Two things were established in this case:
1. the right to action for invasion of privacy
2. The tort of intrusion upon seclusion
• Jane Doe 464533 v. ND
1. Public Disclosure, a second type of tort for privacy intrusion was established
• If, and how will these new torts affect Private Investigators?
Tort of invasion of privacy were established

6. • The action arose between two employees in a bank who did not know or work with
each other.
• The plaintiff, Sandra Jones, discovered the Winnie Tsige, the defendant, looked into
Jones' banking records at least 174 times over a period of four years. The defendant
had formed a common law relationship with the former husband of the plaintiff.
• The defendant acknowledged looking at the plaintiff’s bank information without just
cause or reason, contrary to the bank’s policy and her professional duty.
Jones v. Tsige

7. • Jones initiated legal actions against Tsige.
• Jones asserts that her privacy interest in her confidential banking information has
been "irreversibly destroyed" and claims damages of $70,000 for invasion of privacy
and breach of fiduciary duty, and punitive and exemplary damages of $20,000.
• The plaintiff moved for summary judgment, but the action was dismissed when the
defendant was successful on the motion in claiming that there was no tort for breach
of privacy in Ontario.
• The motion judge found that Tsige did not owe Jones a fiduciary obligation, and
added that given the existence of privacy legislation protecting certain rights, any
expansion of those rights should be dealt with by statute rather than common law.
Jones v. Tsige

8. • Jones successfully appealed this decision to the Court of Appeal, and was awarded
$10,000.
• The central question to this case is:
• Does Ontario law recognize a cause of action for invasion of privacy?
Jones v. Tsige

9. • The Judge considered several aspects:
1. Influenitial relevant texts
2. Case law
3. Charter
4. Statute law regarding private information
• And then defined the tort of intrusion upon seclusion
Analysis

10. • Sharpe J.A. reviewed the seminal articles of S.D. Warren and L.D. Brandeis, "The
Right to Privacy" (1890), and William L. Prosser, "Privacy" (1960)
• Sharpe J.A. accepted the proposition by William L. Prosser in his 1960 article,
“Privacy,” on the four different types of related torts for breach of privacy:
• 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
• 2. Public disclosure of embarrassing private facts about the plaintiff.
• 3. Publicity which places the plaintiff in a false light in the public eye.
• 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness
• This case is within the first category, intrusion upon seclusion
Previous Commentary

11. • The Judge looked for case law for two aspects:
• Recognition of a cause of action for privacy, or the trend to that recognition
• The Court’s willingness to dismiss claims based on no cause of action
• Sharpe J.A. listed several case laws dating back to 1981 on the Court awarding
damaging for the invasion of privacy, and decisions where the Judge refused to
dismiss a claim due to the lack of certainty on the existence of a proper cause of
action
Case law

12. • Charter jurisprudence identifies privacy as being worthy of constitutional protection
and integral to an individual's relationship with the rest of society and the state.
• Charter jurisprudence has recognized three distinct privacy interests:
1. personal privacy
2. territorial privacy
3. informational privacy
• Although the Charter would not necessarily apply to actions between private parties,
however it was consistent to develop the common law to reflect Charter values.
Charter

13. • The court confirmed the existence of a right of action for intrusion upon seclusion
• The court adopted the wording of the American Restatement§652B to define
intrusion of seclusion, which was itself imported from Prosser:
• 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.
• Non-physical forms of investigation were also included
• The intrusion itself makes the defendant subject to liability
Defining the Tort of invasion of privacy

14. • The court lay out the elements of this cause of action:
1. the defendant’s conduct must be intentional, including recklessness;
2. the defendant must have invaded, without lawful justification, the plaintiff’s private
affairs or concerns;
3. a reasonable person would regard the invasion as highly offensive causing distress,
humiliation or anguish.
Defining the Tort of invasion of privacy

15. • The trend of Court decisions regarding this matter has always been moving towards
this recognition
• Technology changes rapidly, affecting ways of communication and the storage of
personal, private information.
• Sharpe J.A. recognized the threat to the right of privacy from the changing
technology, and it is within the capacity of the common law to evolve in response to
this problem
Rationale for this definition

16. • The most important reason:
• The facts in this case “cry out for a remedy”
• This reason is recently echoed in another privacy invasion tort case, Jane Doe
464533 v. ND
Rationale for this definition

17. • The Court of Appeal in Jones drew upon the American Restatement (Second) of
Torts(2010), which identified the following privacy torts at para 18:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
• Jane Doe 464533 v. ND, a recent case, formall established the second type of privacy
torts: public disclosure
Public disclosure

18. • The parties in this case were high school sweethearts. Things turned slightly less
sweet once the plaintiff moved away for university, but they remained in touch.
• The parties communicated via text message and the Internet. The defendant sent
the plaintiff explicit photos of himself, and eventually, convinced her to do the same
for him, even though they were no longer in a relationship. He provided assurances
that nobody else would see the explicit video.
• Within one month he had posted this video to an Internet forum with the title,
“college girl pleasures herself for ex boyfriends (sic) delight”. He showed the video to
several of his friends from their hometown.
Jane Doe 464533 v. ND

19. • The plaintiff was “devastated, humiliated and distraught.”
• The consequences and impact of the defendant’s actions on the plaintiff was
significant and long-lasting. The defendant could not sleep and barely ate, she
deferred her Christmas exams because she was physically and mentally distraught.
• Her took her to a crisis intervention centre at a hospital. She cried for most days and
"had no emotion or life." In her words, she "felt like a very cold person and felt like
everything in my life and all of my beliefs and morals had been stolen from me.“
• This incident has haunted the plaintiff for more than four years, and will likely to
continue to in the future.
Jane Doe 464533 v. ND

20. • In Court, Justice Stinson reviewed existing areas of tort liability, including breach of
confidence, intentional infliction of mental distress, and invasion of privacy.
• For invasion of privacy, Justice Stinson consulted the decision of Jones in great detail,
and found that the Charter protected value of privacy, as well as the effect of rapidly
evolving technology, to be highly applicable in this case.
Jane Doe 464533 v. ND

21. • Justice Stinson found the facts of this case are more closely aligned with Public
disclosure than intrusion upon seclusion.
• "Public disclosure of embarrassing private facts about the plaintiff" is described by
the Restatement (Second) of Torts (2010) at 652D as follows :
• one who gives publicity to a matter concerning the private life of another is subject
to liability to the other for invasion of his privacy, if the matter publicized is of a kind
that
• (a) would be highly offensive to a reasonable person, and
• (b) is not of legitimate concern to the public.
Public disclosure

22. • Prosser, in “Privacy”, listed the feature of this tort as follows :
1. the disclosure of the private facts must be a public disclosure, and not a private
one;
2. the facts disclosed to the public must be private facts, and not public ones; and
3. the matter made public must be one which would be offensive and objectionable
to a reasonable man of ordinary sensibilities.
Public disclosure

23. • The Court issued:
• a total monetary award in favour of the plaintiff of $141,708.03, including damages,
aggravated damages, and punitive damages, and
• an injunction ordering the defendant to destroy all copies of this video in his possession,
preventing him from posting this video online or sharing it with others, and from having
any contact with the plaintiff or her family.
Outcome

24. • The significance of this new tort affects the protection of privacy on several aspects:
1. Legislatures have struggled to find Charter-compliant means to curb inappropriate
conduct online. The Criminal Code has proven too heavy-handed to address the
same. And existing civil remedies have not proven effective enough.
2. The large damages award granted here, and the powerful and sweeping nature of
the injunction, ensures that this new tort will certainly pop its head up in the
future. More importantly, it sends an extremely powerful message to those who
would engage in similar behaviour that there are now significant consequences in
law.
Significance

25. • Privacy torts are relatively new in Canada.
• The recent, formal recognition of Privacy torts reveals a limited amount of relevant
case law on this topic, especially in relation to Private Investigations
• Aside from what we already have, we could look to US jurisdictions for references
Limited Case law

26. • Caltagirone v. Scozzari-Cloutier
• The Court attempted to establish a framework for torts of privacy breach
• The Court recognized not all personal information is private. The tort of invasion of
privacy involves a balancing between competing public and private interests
Manner of Conduct

27. • Deputy Justice Criger set out the following questions as a framework to guide the
balancing:
• 1. Is the information acquired, collected, disclosed or published of a kind that a
reasonable person would consider private?
• 2. Has the Plaintiff consented to acquisition or collection of the information?
• 3. If not, has the information been acquired or collected for a legal process or public interest
reason? If so, what is that reason?
• 4. Has the Plaintiff consented to disclosure or publication of the information?
• 5. If not, has the information been disclosed or published for a legal process or public interest
reason? If so, what is that reason?
• 6. Is the legal process or public interest reason put forward for acquisition, collection,
disclosure or publication one that a reasonable person would consider outweighing the
interest of the individual in keeping the information private?
Manner of Conduct

28. • Actions of investigations on personal information is potentially liable for privacy torts.
• The determination of liability can be examined through relevant case law.
Determination of Liability

29. • In this case, the Superior Court of Pennsylvania found that there is a social utility to
be gained form fraud investigations being conducted. It is in the best interest of
society that valid claims be ascertained and fabricated claims be exposed.
• The Court mainly considered if Tagouma, the Appellant, had a reasonable
expectation of privacy, and thus a right to be free from intrusion upon seclusion.
• The Court further discussed whether surveillance should be limited to sight and
hearing, and not to include the use of technologically advanced tools (video camera)
that may be used to intrude privacy.
Legitimate Investigations

30. • Facts of the case:
• In 2004 the Appellant suffered a fall at work and acute fracture on his right hand. He
sought worker’s compensation benefits. His employer contested his claim and while
his claim was pending, the employee retained a private investigator to preform
surveillance on the appellant.
• The investigator video taped the appellant in his prayer through a window, which
consisted of standing up, kneeling and placing his head upon the floor.
Tagouma v. Investigative Consultant Services
Inc. 2010

31. • The Court ultimately found in favor of the investigator:
• Appellant had failed to establish an expectation of privacy while praying in public.
• There is a social utility to be gained form these investigations. It is in the best interest of
society that valid claims be ascertained and fabricated claim be exposed.
Tagouma v. Investigative Consultant Services
Inc. 2010

32. • Essential elements to intrusion upon seclusion
1. the defendant’s conduct must be intentional, including recklessness;
2. the defendant must have invaded, without lawful justification, the plaintiff’s private
affairs or concerns;
3. a reasonable person would regard the invasion as highly offensive causing distress,
humiliation or anguish.
Reasons behind this decision

33. • The Supreme Court of the United States has noted, that a plaintiff who claims
worker’s compensation, has demised expectation of privacy. Citing that it is not
uncommon for defendants in accidents cases to employ investigators to check the
validity of claims against them. The plaintiff must expect reasonable inquiry and
investigation to be made into her their claim and to this extent their interest in
privacy is circumscribed.
• The question of whether the investigator’s conduct is reasonable, the court found
that there is a social utility to be gained form these investigations. It is in the best
interest of society that valid claims be ascertained and fabricated claim be exposed
Reasons behind this decision

34. • Schmidt v. Ameritech Illinois
• The plaintiff claimed to have a knee injury and went on disability leave.
• The plaintiff's supervisor became suspicious and placed him under investigation as
the plaintiff attempted to take vacation against disability policy
• In addition to staking out the plaintiff's home, Ameritech, the employers also
checked certain of the plaintiff's phone records in an attempt to prove his
whereabouts during the week in question.
• The plaintiff brought an intrusion-upon-seclusion claim against Ameritech, alleging
that the company had improperly reviewed his phone records.
Justification: “protection of its property
interest and rights”

35. • Although the jury found in the plaintiff's favor, the verdict was overturned on appeal.
On appeal the court found that “Ameritech's conduct was a necessary incident to the
protection of its rights or property,” and that “ ‘rights or property’ includes
Ameritech's monetary resources.”
Justification: “protection of its property
interest and rights”

36. • Shred-Tech Corp v. Viveen.
• The Investigators obtained telephone records, and made video and audio recordings
while posing as a prospective customer at one of the defendants’ business premises.
• The Judge recognized this to be a breach of the defendant’s right to privacy, and this
issue is of important public interest.
Illegitimate Private Investigation

37. • In the case of R. v. Cole, the accused was a high school teacher who was charged
with possession of child pornography and unauthorized use of a computer.
• He was permitted to use his work-issued laptop computer for incidental personal
purposes which he did. While performing maintenance activities, a technician found
on the accused’s laptop a hidden folder containing nude and partially nude
photographs of an underage female student.
• The technician notified the principal, and copied the photographs to a compact
disc. The principal seized the laptop, and school board technicians copied the
temporary Internet files onto a second disc.
Applications – assessment of liability

38. • In light of Jones, Cole, and Tagouma, it is evident that when it comes to the use of
investigations, courts could assess liability based on:
• Location of surveillance
• Reasonable expectation of an individual
• Legitimacy of the cause of investigation
• Conduct of the investigator
The Next Frontier for Investigators

39. • If employers hire investigators to investigate an employee, they may be of vicarious
liability for the intrusion upon seclusion.
• In Cole, we see the significance of examining the existing policies that may affect the
reasonable expectation of privacy: if the employer allows the employee to take
laptops home and use them personally, there is a reasonable expectation of privacy.
Applications – assessment of liability

40. • In another US jurisdiction case law, where an employer was successfully sued for the
actions of the Private Investigators hired by the employer.
• North American Corporation of Illinois retained a firm to investigate whether its
former salesperson, Kathleen Lawlor, had violated a noncompetition agreement.
• The Private Investigators used information provided by the employer, such as birth
date, address, home and mobile phone numbers, and social security number, to
obtain the personal phone records from the employee’s telephone carrier.
• The jury returned a verdict in favor of the employee, and awarded her $65,000 in
compensatory damages and $1.75 million in punitive damages.
• The Court however, capped punitive damages at $65,000 because there was no
evidence that North American orchestrated an “intentional, premeditated scheme to
harm Lawlor.”
Applications

41. • In a very recent case, a tenant refused to allow the landlord access to the property
for the purpose of photographing it, under concerns of privacy.
• The lease allowed the landlord entry “in any circumstances”, but the Ontario
Divisional Court Judges found entry for the purpose of photography without consent
was not a legitimate reason.
Applications

42. • The Court has stresses the evolving and adaptive nature of common law in response
to the constantly evolving technology.
• As far as privacy torts go, should we expect the other two American torts to
influence or modify Canadian common law?
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Future Frontiers?

43. • The trend of the Court’s decision regarding privacy in this technological era concerns
with two main aspects:
1. Conduct on acquiring information
2. Conduct on what to do with the information
• Intrusion upon seclusion protects privacy from unwanted attention and investigation
• Public disclosure protects privacy from illegitimate and mal-intentioned publication
of personal information
Protection of information

44. 3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
• We could imagine these two types of tort being used to regulate conduct regarding
acquired personal information.
• The aim is to prevent illegitimate, unwanted and unwelcomed gather and use of
personal information.
Protection of information

45. Contact Information:
e-mail: Omar@FleetStreetLaw.com
LinkedIn: https://ca.linkedin.com/in/torontolawyer
Twitter: @omarharedeye
QUESTION AND ANSWER PERIOD