Ontario Recognizes Tort Action for Invasion of Privacy

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

An employee and accountholder of a bank was entitled to an award of $10,000 (Canadian) in damages against a co-worker who, contrary to the bank’s policy, used her workplace computer to access the complaining employee’s computer at least 174 times, the Court of Appeal for Ontario, Canada has held. In the court’s view, the Province of Ontario recognized a common-law cause of action for invasion of privacy.

Intrusion Upon Seclusion

Ontario had already accepted the existence of a tort claim for appropriation of personality, the court noted. The Province at least remained open to the proposition that a tort action will lie for an intrusion upon seclusion, as asserted by the employee.

Canadian law’s protection against unreasonable search and seizure indicated that privacy was considered worthy of constitutional protection, the court said. The interests engaged by the protection against unreasonable search and seizure were not simply an extension of the concept of trespass, but rather were grounded in an independent right to privacy held by all citizens.

A specific interest in one’s informational privacy had been identified by case law, according to the court. The complaining employee’s claim to privacy in her banking records would fall within her interest in informational privacy.

The recognition of a right to privacy was also shown by the development of the common-law tort of defamation, and privacy had been declared to be a human right by various international agreements, such as the International Covenant on Civil and Political Rights, the court noted.

Interference with Federal, Provincial Legislation?

A common-law cause of action for invasion of privacy would not interfere with federal and provincial legislation, such as the federal Personal Information Protection and Electronic Documents Act (PIPEDA), in the court’s view. PIPEDA dealt with “organizations” subject to federal jurisdiction and did not speak to the existence of a civil cause of action in Ontario.

To proceed under PIPEDA, the employee would have to file a complaint against the bank—her own employer—rather than against the co-worker who accessed the records. The co-worker acted as a rogue employee, which could provide the bank with a complete defense to a PIPEDA action. Moreover, the remedies available under PIPEDA did not include damages.

Elements of Claim

The elements of the tort of intrusion upon seclusion were derived from the Restatement (Second) of Torts (2010):

“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.”

When the plaintiff had suffered no provable pecuniary loss, the plaintiff could seek “symbolic” or “moral” damages. Damages awards for invasion of privacy would be analogous to damages awards for other torts, such as nuisance or trespass. Aggravated damages would be appropriate in cases involving egregious conduct.

In the current case, the court held that (1) the defending co-worker’s intrusion was intentional; (2) it amounted to an unlawful invasion of the complaining employee’s private affairs; (3) it would be viewed as highly offensive to a reasonable person; and (4) it caused distress, humiliation, and anguish.

Although the co-worker’s actions were deliberate and repeated, and the employee was upset by the intrusion, the employee suffered no public embarrassment or harm to her health or social position, and the co-worker had apologized for her misconduct. On balance, appropriate damages fell at the midpoint of the range of damages that would be reasonable for intrusions upon seclusion, or $10,000. The co-worker’s conduct was not deemed to be so exceptional as to warrant an award of aggravated or punitive damages.

The decision is Jones v. Tsige, CCH Privacy Law in Marketing ¶60,730.

Pennsylvania Residents Can Proceed with Trespass Claims over Google “Street View”

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

Two Pennsylvania residents (the Borings) could go forward with common-law trespass claims against Internet search-engine operator Google for photographing their residence, outbuildings, and swimming pool and including the photographs in Google's "Street View" option for its online map service, the U.S. Court of Appeals in Philadelphia has held in a non-precedential decision.

The Borings, who live on a private road in Pittsburgh, alleged that Google entered their property without permission and despite a "no trespassing" sign.

Trespass

A federal district court had dismissed the claims (CCH Privacy Law in Marketing ¶60,298), ruling that the Borings failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of Google’s trespass. (See March 5, 2009 posting on Trade Regulation Talk).

In its denial of the Borings’ motion for reconsideration (CCH Privacy Law in Marketing ¶60,323), the district court explained that, although nominal damages are available for the tort of trespass in Pennsylvania, the residents did not request nominal damages in their amended complaint, as required by Pennsylvania law.

Damages

Trespass is a strict liability tort, the appellate court noted. The district court effectively made damages an element of the claim, which was erroneous. The Borings’ assertion that Google entered onto their property without permission was sufficient to state a claim for trespass. There was no requirement that damages be pleaded, either nominal or consequential.

“Of course,” the appellate court said, “it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day.”

To receive more than one dollar, the Borings would have to prove that the trespass was the legal cause of actual harm or damage, the court said. Their complaint, however, alleged sufficient facts to survive a motion to dismiss.

Invasion of Privacy

The appellate court affirmed the dismissal of the Borings’ claims for common-law invasion of privacy, on the ground that the Borings failed to allege facts that would support a conclusion that Google’s entry onto their property and its capturing of images for the Street View service would be highly offensive to a reasonable person.

“No person of ordinary sensibilities would be ashamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there,” the court said.

In the court’s view, Google’s actions were arguably less intrusive than a knock on the door of a private residence, which the Restatement (Second) of Torts cited as an example of conduct that would not be highly offensive to a person of ordinary sensibilities. The view of the Borings’ house, garage, and pool could be seen by any person who entered onto their driveway, including a visitor or a delivery person.

The heart of the Borings’ complaint appeared not to be Google’s fleeting presence in the driveway, but, rather, the photographic image captured at that time, according to the court. “The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive,” the court said.

Unjust Enrichment

Dismissal of the Borings’ claims for unjust enrichment was also affirmed. The Borings did not allege that they conferred any benefit to Google, let alone a benefit for which they could reasonably expect to be compensated.

Injunctive Relief

The Borings also failed to set out facts supporting a plausible claim of entitlement to injunctive relief. There was no allegation of injury resulting from Google’s retention of the photographs, which was unsurprising, the court said, because the allegedly offending images had been removed from the Street View service.

Full text of the January 28 decision in Boring v. Google, Inc., 3rd. Cir., No. 09-2350, will appear in CCH Privacy Law in Marketing.

Google “Street View” Did Not Invade Property Owners’ Privacy

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

Pennsylvania residents (Aaron and Christine Boring) could not pursue common-law invasion of privacy or negligence claims against Internet search-engine operator Google for photographing their residence, outbuildings, and swimming pool and including the photographs in Google’s “Street View” display option for its online map service, the federal district court in Pittsburgh has ruled.

The Borings asserted that they lived on a private road that had been clearly marked with “No Trespassing” signs and that Google had physically intruded upon their seclusion and had unlawfully published private facts.

Invasion of Privacy

The couple did not substantiate their claim that Google’s intrusion and display of the photographs was highly offensive. The Borings had failed to take advantage of available procedures to have the images removed from the Google Street View service, the court noted.

The litigation had itself brought attention to them and the online images of their property. They did not bar others’ access to the images by eliminating their address from the pleadings or by filing an action under seal. The Boring’s failure to take steps to protect their own privacy and mitigate their alleged pain suggested that the intrusion and their suffering were less severe than contended, in the court’s view.

Negligence

The common-law negligence claims failed because Google did not owe a duty of care to the Borings to avoid posting photographs of private property, the court said. Simply stating that there ought to be a duty is not sufficient to support a negligence claims.

The decision is Boring v. Google, Inc., CCH Privacy Law in Marketing ¶60,298.