Privacy

Personal Information Protection Legislation
As of January 1, 2004 all private sector organizations in Canada are directly or indirectly affected by personal information protection legislation of general application [hereinafter “PIP Statutes”].

Canadian PIP Statutes include:

The federal Personal Information Protection And Electronic Documents Act came into force in Ontario, Manitoba, Saskatchewan, Newfoundland, Labrador, Nova Scotia, New Brunswick and Prince Edward Island on January 1, 2004.

Roger D. McConchie has considerable experience advising clients concerning the steps required to become compliant with PIP legislation. Among other matters, he has advised clients with respect to the following matters: appointment of a privacy officer, creating the client privacy working group; identifying all relevant legal regimes; auditing existing collection, use and disclosure practices; identifying existing policies and procedures; creating or modifying policies and procedures which comply with legislated requirements; publicizing policies and procedures internally and externally; implementation; monitoring and enforcing policies and procedures; responding to complaints; responding the enforcement measures; risk assessment and insurance; and developing a privacy compliance manual.

Roger D. McConchie's litigation services have included defending federal court litigation under the Personal Information Protection and Electronic Documents Act.
 
Invasion of Privacy Tort
The following information concerning the law of British Columbia is extracted from the chapter on Canada in "50-State Survey 2003-04, Media Privacy and Related Law", published by the Media Law Resource Center, New York, N.Y., U.S.A, co-authored by Roger D. McConchie, with Brian Macleod Rogers and Mark Bantey.

The Privacy Act, R.S.B.C.1996, c.373, provides: "It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another."

The Act further provides that the "nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others .… In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties .… Privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass .…" (s. 1). "Eavesdropping" and "surveillance" are not defined in the statute.

Although the Privacy Act does not specifically exempt persons engaged in newsgathering, it provides that publication is not a violation of privacy if the matter published was of public interest or was fair comment on a matter of public interest, or if the publication was privileged in accordance with the rules of law relating to defamation. (s. 2(3)).

The limitation period is two years. (s.3(2)(f), Limitation Act, R.S.B.C. 1996, c.266). Death extinguishes the cause of action. (s. 5, Privacy Act). The Privacy Act is silent about remedies, but it has been held that punitive damages may be awarded.

Similar legislation is in force in Manitoba, Saskatchewan and Newfoundland and Labrador.

Roger D. McConchie's advice and litigation services have included the defence and prosecution of claims under the British Columbia Privacy Act.
 
Misappropriation of Personality
The following information concerning the law of British Columbia is extracted from the chapter on Canada in "50-State Survey 2003-04, Media Privacy and Related Law", published by the Media Law Resource Center, New York, N.Y., U.S.A, co-authored by Roger D. McConchie, Brian Macleod Rogers and Mark Bantey.

The Privacy Act of British Columbia creates a separate tort for misappropriation of a person's name or portrait for the purpose of advertising or promoting the sale or other trading in property or services. R.S.B.C. 1996, c.373, s.3(2).

There is no breach of the Privacy Act in the publication of a plaintiff's portrait unless it is a recognizable likeness of the plaintiff.

Further, the plaintiff must prove there has been exploitation of his or her name or reputation.

The privacy statutes of Manitoba, Saskatchewan and Newfoundland and Labrador treat commercial appropriation of personality as an aspect of breach of privacy. C.C.S.M. 1970, c.P-125, s.3(c); R.S.S. 1978, c.P-24, s.3(c); R.S.N. 1990, c.P-22, s.4(c).

Under the B.C., Saskatchewan and Newfoundland and Labrador statutes, any claim for misappropriation is extinguished on death. R.S.B.C. 1996, c.373, s.5; R.S.S. 1978, c.P-24, s.10; R.S.N. 1990, c. P.22,s.11.

The Manitoba statute is silent on the issue of survival of the claim.

In British Columbia, in order to render a newspaper, other publication or a broadcaster liable for misappropriation of personality, the plaintiff must prove that his name or portrait was used specifically in connection with material relating to the readership, audience, circulation or other qualities of the newspaper, other publication or broadcaster. (s.3(4)(a)). Further, to render another liable for using his name or portrait for advertising or promoting the sale of a sponsor's goods or services in a radio or television program relating to current or historical events or affairs, or other matters of public interest, the plaintiff must prove that his name or portrait was used specifically in connection with material relating to those goods or services. (s.3(4)(b)).

These special safeguards for the media are not found in the Manitoba, Newfoundland or Saskatchewan privacy statutes and there are no cases indicating whether the courts in these provinces would recognize limitations similar to those found in the British Columbia Law.

Roger D. McConchie's advice and litigation services have included the defence and prosecution of claims under the British Columbia Privacy Act.
 
Public Sector Freedom of Information and Protection of Privacy Legislation
Roger D. McConchie has experience in the prosecution and defence of many applications and proceedings under the federal Privacy and Access to Information statutes and the British Columbia Freedom of Information and Protection of Privacy Act.

Roger D. McConchie was heavily involved in the government's consultation process leading up to the enactment in 1993 of the British Columbia Freedom of Information and Protection of Privacy Act.
 
General - Keeping up-to-date on the law
Each year Roger D. McConchie co-authors the Survey of Canadian Privacy and Related Claims against the Media which is published in the annual "50-State Survey" of "Media Privacy and Related Law" by the Media Law Resource Center in New York, N.Y. That survey up-dates developments in a wide spectrum of Canadian law topics, including: Invasion of Privacy - General; The Privacy Acts of British Columbia, Manitoba, Saskatchewan, and Newfoundland and Labrador; Publication of Private Facts and Breach of Confidence; Intrusion, including Electronic Eavesdropping and Recording, Video Surveillance, Police Ride-alongs; Federal and Provincial Statutes; Trespass including provincial trespass legislation; nuisance; misappropriation of personality/right of publicity; breach of contract and confidential sources; intentional infliction of emotional distress; negligent infliction of emotional distress; conspiracy; tortuous interference with contract or economic advantage; negligent media publication; cameras in the courtroom; tape recorders in the courtroom; confidential sources; slapp lawsuits; criminal code publication bans, and access to court proceedings and to court records.

Roger D. McConchie is routinely called upon to give advice to clients in the areas of the law covered by the annual survey.