Safeguarding Privacy in the Age of Social Media: Legal Remedies and Emerging Protections
The breach of one’s privacy has always been an important legal issue, but more so in the age of social media, where information can be disseminated instantaneously to the masses.
In today’s post, we review some legal remedies available under our provincial laws when one’s privacy has been breached.
A. Privacy Act
The Privacy Act creates a statutory right to sue for compensation when someone “willfully and without a claim of right” violates the privacy of another. Claimants have successfully applied the law in various circumstances, including:
- Using a scanner to monitor and record a neighbour’s phone calls;
- The landlord’s installation of a surveillance system that caused undue stress to the tenant;
- Being videotaped in the bathroom through a peephole;
- A financial institution’s unauthorized change of the client’s address in its computer system.
It should be noted that a claim under the Privacy Act will not be successful if the breach is justified. For example, if the breach occurred in the context of a proper law enforcement investigation, was authorized by a court order or was a publication relating to public interest.
Furthermore, even if a breach of privacy has been established, the court may only award a nominal amount if no serious or lasting harm resulted from the breach. Converse, punitive or aggravated damages may be awarded if the court finds the conduct leading to the breach of privacy requires repudiation. This is most common with unauthorized recordings or publications of a sexual nature.
The Privacy Act also creates a statutory right to sue if there is an unauthorized use of one’s name or portrait.
B. Personal Information Protection Act
The Personal Information Protection Act regulates how private organizations in B.C. must collect, protect and disclose personal information they gather. The statute enables the creation of the Office of the Information and Privacy Commissioner, which investigates potential breaches under the Act. In the event that the Commissioner makes an order that a private organization has breached its statutory duties, the victim has the right to seek compensation from the private organization but must prove that the breach has resulted in some type of harm.
C. Intimate Images Protection Act
Earlier this year, the B.C. legislature passed the Intimate Images Protection Act, although it has not yet to come into force.
The definition of an intimate image is quite broad:
“intimate image” means a visual recording or simultaneous visual representation of an individual, whether or not the individual is identifiable and whether or not the image has been altered in any way, in which the individual is or is depicted as
- engaging in a sexual act,
- nude or nearly nude, or
- exposing the individual’s genital organs, anal region or breasts.
The law is focused on non-consensual distribution of intimate images.
It does not apply when the distribution is consented to by court order or part of a proper law enforcement investigation. However, the law specifies that the consent for distribution is revocable at any time.
As the law has yet to come into force, its applicability and utility have yet to be tested. However, there appear to be some promising features:
- Victims can seek an order for the removal and destruction of the intimate images that were unlawfully distributed, and the order can be directed against the distributor of the intimate images or an internet intermediary (e.g. search engines, social media, websites etc.);
- The law allows broad discretion, and an order can potentially be directed against any other interested parties;
- The law applies to both actual distribution and the threat of distribution;
- Orders can be sought on behalf of a victim who is a minor or who has passed away;
- Victims have a statutory right to sue for compensation;
- The law specifically allows for injunctive relief; and
- Publication bans apply to legal proceedings related to seeking the above orders to avoid further infringement on the victim’s privacy.
Traditionally, one of the biggest hurdles in dealing with legal issues arising from online materials is that the internet hosts are usually multinational corporations based outside of Canada; therefore, these companies might not be compliant with orders made within our jurisdiction. The Attorney General has stated that she has consulted with the main providers concerning their cooperation to enforce this new law, but details are lacking for now.
Do You Have Questions?
Please note: This article does not contain legal advice. If you would like advice on your specific situation, please contact Spraggs Law.