What journalists need to know about newsgathering and the individual’s right to privacy

There is no clear universally accepted definition or law of privacy in Canada.  As a result, the courts have generally taken the view that a free-standing right to privacy does not in fact exist. For journalists, this has often created confusion about what newsgathering techniques are acceptable, writes J-Source’s law editor Thomas Rose. This is…

There is no clear universally accepted definition or law of privacy in Canada.  As a result, the courts have generally taken the view that a free-standing right to privacy does not in fact exist. For journalists, this has often created confusion about what newsgathering techniques are acceptable, writes J-Source’s law editor Thomas Rose.

This is the second part of a weekly four-part series on legal issues young journalists should be cognizant about as they embark on their careers. Read part 1 on anonymous sources

By Thomas Rose, J-Source law editor

Privacy is one of those issues that are especially tricky for journalists looking to balance the rights of the individual with the needs of the greater public interest.

Until very recently in Canada, invasion of privacy has been addressed by the courts indirectly through the development and application of other torts, including appropriation of personality, nuisance, harassment, defamation, and injurious falsehood.

Not surprisingly, this has created an almost ad hoc approach to privacy which has often left journalists in the position of having to second-guess the courts when conducting research into a story.

Take the case of Jan Wong, for instance.  In 2006, the Globe and Mail ran a series of articles written by Wong called “Maid for a Month.”

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The articles were based on Wong’s experiences cleaning other people’s toilets, floors and kitchens. To gain access to peoples’ homes, Wong had obtained employment with an actual maid service in Toronto.  She used her own name, but she did not tell the company she was a reporter with the Globe. In her series, Wong changed the names of all the people she wrote about—her boss, her co-workers and some families. But she did not pull her punches when making accusations of mistreatment by employers who treated housekeepers as little more than their personal slaves.

One family, who lived in Markham, north of Toronto, was incensed, claiming that details such as the neighbourhood in which they lived, the family makeup, and the ample pant-sizes of the father were enough to identify them to ‘any reasonable reader’. They contacted a lawyer and filed suit for $50,000. 

As the family’s lawyer, Sam Hall, put it, had his clients known the truth, they’d never have let Wong into their house.  “Journalists and powerful media companies”, said Hill, “can’t invade someone’s home under false pretences and put their private lives on public display to sell newspapers”. 

So, was this an unwarranted invasion of privacy or was it a case of good old fashioned journalism seeking to bring to light an issue that was in the greater public interest?

Superior Court of Ontario Justice David Aston apparently was inclined to agree with Hall and his clients.  In his 2008 ruling, Judge Aston rejected the Globe’s attempt to have the case dismissed; noting that the plaintiffs claim that they had suffered damage as a result of Wong’s intrusion into their private lives had merit.

On the other hand, a year later, in Nova Scotia, in a case involving a politician seeking to prevent a journalist from publishing contents of a private conversation recorded on a private tape recorder, the province’s Supreme Court sided with the journalist.

In his ruling, Justice Gerald Moir decided stated that the public interest trumped any claim to privacy. “It is wrong to deprive the press,” he wrote, “and the public it serves, of remarks made privately”.

Confusion and Contradiction

The confusion over privacy and the often contradictory approaches of the courts can be explained in part by the absence of a universally accepted definition of privacy or a common law tort of privacy with a standardized test to determine when a breach has occurred. In effect, this has meant the courts have adopted the view that there is no “free-standing right to dignity or privacy under the Charter or at common law.

Federally there are two laws that help protect the privacy of all Canadians.  The Privacy Act gives individuals the right to access and request corrections to personal information held by federal agencies.  The Personal Information Protection and Electronic Documents Act regulates how private sector businesses and organizations can collect and make use of personal information.  Beyond these two laws, each province and territory has enacted their own privacy laws, some of which have been favourable to journalists (B.C., Manitoba), and some of which have been less favourable (Nova Scotia, Ontario).  

Despite the existence of these laws however, privacy law is not well developed in Canada.  This has meant that judges have generally approached matters of privacy involving journalists on a case-by-case basis. As described above, such an approach can cut both ways for reporters wondering whether they have overstepped their bounds in the pursuit of a story. 

Some Progress

Progress is being made however at the regional level by individual courts seeking to create a standalone tort of invasion of privacy that would define and entrench privacy rights while clarifying the boundaries of acceptable newsgathering activities.  

In a recent article, University of Toronto law professor Jared Mackey suggested that a decision last year by the Ontario Court of Appeal has created a ‘fundamental and modernizing shift’ in Canadian privacy law. In Jones v Tsige, the Court held that a person is liable for an invasion of privacy, if “he or she intrudes, physically or otherwise, upon the seclusion or private affairs or concerns of another person”.  The Court then created a new tort called an intrusion upon seclusion, which Mackey suggests has the potential to ‘dramatically’ change the way journalists operate as well as the way we think about “our core conceptions of individual privacy”.

Of importance for journalists is that the tort of intrusion upon seclusion does not require an element of publicity.  It is enough that an individual’s expectation of privacy has been violated, regardless of whether the material gathered is ever published.

This distinction could have far reaching effects for journalists, especially when as Justice James Sharpe wrote in his decision, there is activity involving “listening or looking into private places,” with or without mechanical aids. In this sense, an intrusion into seclusion could occur when a journalist stakes out a private residence, conducts an “ambush interview” at an individual’s home or place of business, or makes use of telephoto lenses and shotgun microphones to capture private activity.

The Criminal Code of Canada already prohibits phone and computer hacking but as Mackey notes the tort of inclusion into seclusion now gives victims the ability to go after journalists and publishers.  Think of the Murdoch phone-tapping scandal in the U.K. and you see the potential importance of this distinction.

For more information on the impact of the Jones case as well as the evolving attitude of the courts toward traditional newsgathering techniques, especially in the age of digital communications where ‘everybody’ is a potential journalist, check out Kent Glowinski’s and Jesse Hirsch’s recent overview of privacy and journalism in the age of social media

Tamara Baluja is an award-winning journalist with CBC Vancouver and the 2018 Michener-Deacon fellow for journalism education. She was the associate editor for J-Source from 2013-2014.