Past The Point Of No Return: Jones v. Tsige And The 'New' Tort Of Invasion Of Privacy In Canada

Originally published on CyberInquirer.

Jeremy Bentham used to refer to the common law as the "dog law". As he explains it, "whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.".

Insofar as the tort of invasion of privacy in Canada is concerned, Jeremy Bentham was arguably right. Aside from the province of Quebec, which is governed by a civil law system, and a few other provinces in Canada which have benefited from a statutorily enacted tort of invasion of privacy, lower Courts have been divided over the existence of a free-standing tort of invasion of privacy at common law. The recent decision Jones v. Tsige (2012) by the Ontario Court of Appeal is the first to confirm that what used to be an embryonic tort of invasion of privacy is now alive and well in Canada

The result in Jones v. Tsige was the next logical step in a long history of debate that began in the U.S. Following a highly influential article published by Warren and Brandeis in 1890 in the Harvard Law Review, in which they discussed the importance of protecting privacy in the face of numerous privacy invasive "mechanical devices", a substantial amount of judicial and academic ink was spilt on the right to privacy in the U.S. Arguably the first American decision to recognize a tort of invasion of privacy was Pavesich v. New England Life Ins. Col. (1904), which recognized privacy as a natural right grounded in the right to liberty. In yet another seminal article published in the California Law Review in 1969, William Prosser affirmed that what was emerging was not a single privacy tort but rather four different privacy interests, one of which included "intrusion upon seclusion".

The American model slowly found fertile grounds in Commonwealth countries. Drawing upon Warren and Brandeis, Pavesich, and Prosser's "complex of four", the District Court of Queensland, Australia, affirmed in Gross v. Pervis (2003) that in light of modern technologies, recognizing an actionable right for invasion of privacy was a "logical and desirable step". In New Zealand, the decision Hosking v. Runting (2003) found that it was "legally preferable" and "better for modern society" to recognize a "self contained and stand-alone common law cause of action to be known as invasion of privacy". In Naomi Campbell v. The Mirror (2004), the English House of...