English case looks under the hood of Facebook in privacy case

A colleague just brought to my attention a case handed down yesterday by the High Court of Justice (Queen's Bench Division) of England & Wales: Applause Store Productions Ltd. & Anor v Raphael [2008] EWHC 1781 (QB) (24 July 2008).

The case relates to the misuse of private information and defamation. The defendant in this case had set up a false Facebook profile in the name of the plaintiff and established a Facebook group that was, shall we say, not flattering of the plaintiff. The court found in favour of the defendant on both claims.

What's additionally interesting is the detail with which the Court reviews the logging data generated by Facebook and provided to the Court. The case is an interesting read for privacy issues, but also is a good chance to look under the hood of Facebook, forensically speaking.

Alberta Court says claims for invasion of privacy must go to Commissioner first

In the recent case of Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412, the Alberta Court of Queen's Bench struck a portion of a plaintiff's statement of claim related to invasion of privacy, holding that the plaintiff must first complain to the Information and Privacy Commissioner before appearing in court:

Paragraph Nine

[43] It is alleged:

On or about June 2009 and again on or about August 24, 2009 Bernie Haggarty, Business Agent for the Defendant violated my rights with regards to the release of private medical information without first obtaining written consent.

[44] Bernie Haggarty has filed an Affidavit in response to this allegation denying that he improperly released any private medical information of the Plaintiff as alleged or at all, and showing the circumstances of his involvement in efforts to allow the Plaintiff’s employer to evaluate whether or not it accommodate the injury restrictions of Ms. Martin. He deposes that Ms. Martin was present when he sent the information and that he did so wholly with her consent.

[45] This claim appears to be one of invasion of privacy. In Bank of Montreal v. Cochrane, [2010] A.J. No. 1210, Kent, J. discussed claims for breach of privacy, paras. 6, 7 and 8:

6 The second arguable claim is for breach of privacy. BMO first says that if there is a statutory claim for breach of privacy both provincial and federal legislation require certain conditions to be met before a claim can be brought before a court: see Personal Information Protection Act,S.A. 2003, c.P-6.5 and Personal Information Protection and Electronics Documents Act, S.C. 2000, c.5, ss.14-15. These preconditions have not been met.

7 If the pleading claims a common law claim for breach of privacy, BMO argues that there is no such claim: Mohl v. University of British Columbia,[2009] B.C.J. No. 1096 (B.C.C.A.). BMO also argues that the litigation process is intended to be a public process so that anything contained in pleadings cannot be a breach of privacy.

8 I agree with BMO.

[46] In the case referenced by Justice Kent of Mohl v. University of British Columbia, the B.C. Court of Appeal noted at para. 13, “there is no common law claim for breach of privacy”.

[47] If a claimant wishes to make a claim for damages arising from a breach of privacy, the Personal Information Protection Act, S.A. 2003, c.P-6.5requires a claimant to proceed with his or her claim before the Commissioner appointed under that Act. If the Commissioner makes an Order under the Actagainst an organization, an individual affected by the Order then has a cause of action against the organization for damages for loss or injury that the individual has suffered as a result of the breach of the Act by the organization. (Para. 60 of the Act)

[48] Therefore, claims for a breach of privacy which have not first proceeded before the Commissioner cannot be heard by the Court. Further, the Affidavit evidence of Bernie Haggarty on this matter, uncontroverted by the Plaintiff, satisfies me that there is genuine issue to be tried. Paragraph 9 would be struck pursuant to Rule 3.68(a). However, on the uncontroverted evidence of Mr. Haggerty it is dismissed.

Quebec movie theatre ordered to pay $10K in damages for bag search

According to CTV News, a Quebec movie theatre is liable for $10,000 in damages when it searched a family's bags (ostensibly for video recording equipment) and exposed the eldest daugther's birth control pills to her unknowing parents. See: CTV.ca Cinema ordered to pay $10K in damages for search.

(Before extending this decision to the rest of Canada, remember that the private right of damages for privacy invasion is different in Quebec.)

Court says there's no tort of invasion of privacy in Ontario

The Ontario Superior Court of Justice just released a decision today in Jones v. Tsige, 2011 ONSC 1475 (PDF), which states, clearly and without ambiguity that there is no free-standing tort of invasion of privacy in Ontario.

The facts involve a claim against an employee of a bank who reviewed the plaintiff's confidential banking records on at least 174 occasions. Whitaker J. canvassed a number of authorities, including the well-known case of Somwar v MacDonalds, but concluded that there is no such tort. The Court notes that the plaintiff had a remedy under PIPEDA:

In Ontario, it cannot be said that there is a legal vacuum that permits wrongs
to go unrighted - requiring judicial intervention.

[54] More particularly here, there is no doubt that PIPEDA applies to the banking sector and Ms. Jones had the right to initiate a complaint to the Commissioner under that statute with eventual recourse to the Federal Court. For this reason I do not accept the suggestion that Ms. Jones would be without any remedy for a wrong, if I were to determine that there is no tort for the invasion of privacy.

[55] Notwithstanding the careful reasoning in Somwar and its adoption in Nitsopoulos, conclude that the decision of the Court of Appeal in Euteneier is binding and dispositivc of the question as to whether the tort of invasion of privacy exists at common law.

[56] I would also note that this is not an area of law that requires judge-made rights and obligations. Statutory schemes that govern privacy issues are, for the most part, carefully nuanced and designed to balance practical concerns and needs in an industry-specific fashion.

[57] I conclude that there is no tort of invasion of privacy in Ontario.

It will be interesting to see if this conclusion may be avoided if there is no remedy available under PIPEDA or any other statute. It'll also be interesting to see if it's appealed.

Major tip o' the hat to Dan Michaluk:
No Invasion of Privacy Tort in Ontario « All About Information.

Nova Scotia Court of Appeal favours open courts over youth privacy in Facebook defamation case

Yesterday, the Nova Scotia Court of Appeal issued a decision (AB v Bragg Communications Inc, 2011 NSCA 26) denying a child-plaintiff's application to proceed in a defamation action under a pseudonym and to impose a publication ban on the defamatory materials. The case involves a fake Facebook profile created by an unknown person and the dissemination of defamatory messages via that profile. The plaintiff sought the court's assistance in tracking town the intended defendant based on the IP address. At the original hearing, the judge denied the application to proceed under a pseudonym, which was upheld by the Court of Appeal. In short, the open courts principle trumps her concerns.

Since I was one of the lawyers working for the young girl who sought the application, you should read Dan Michaluk's summary for an unbiased view: Nova Scotia CA Favours Open Courts Over Youth Privacy in Facebook Defamation Case « All About Information.

Tracking Internet miscreants

A growing portion of my practice is working with the litigators in my firm on cases of online torts, including defamation and harassment. This mainly involves working to track down people who do harmful things under a veil of supposed internet anonymity. This includes people who hide behind pseudonyms on chat boards and other internet fora while saying defamatory things in addition to the (apparently) growing problem of creating fake Facebook profiles in order to harass and bully others. We've dealt with similar situations involving online dating sites, where people have set up fake profiles in the names of the victims in order to harass them.

I'm not sure about the psychology behind this, but it certainly appears as though many people feel free to say things about others on the internet that they would never say in "public" or to the person's face. Others, bullies in particular, see the internet as a great place to extend their activities, often with very harmful results.

Some of the cases I've worked on have become well-publicized in this region, and I was asked by the Canadian Bar Association - New Brunswick Branch to present on the topic at their annual Mid-Winter Meeting. In case you're interested, below is a presentation on what sorts of tracks people leave online and how they can be assembled and used to try to identify otherwise unnamed defendants. In almost all cases, they involve applying to the court for Norwich orders, which is a form of order from the court to require a mostly uninvolved third-party to provide information that will lead to the identification of the actual defendant. The court, acting as the gatekeeper, needs to balance the interests of the plaintiff who is looking for a remedy against the interests of both the third party service provider and the unnamed defendant. In short, the court should not allow a fishing expedition, nor should it allow the disclosure if the claim is not reasonably well established. Only if the plaintiff is able to satisfy the following test will the court order disclosure:

(1) the applicant must establish a bona fide claim against the unknown alleged wrongdoer;

(2) the third party against whom discovery is sought must be in some way connected to or involved in the misconduct;

(3) the third party must be the only practical source of the information available to the applicant;

(4) the third party must be reasonably compensated for expenses and legal costs arising out of compliance with the discovery order; and

(5) the public interest in favour of disclosure must outweigh the legitimate privacy interests.

Here is the presentation I gave to the Canadian Bar Association New Brunswick's Mid-Winter Meeting:

https://docs.google.com/present/view?id=ddpx56cg_379fgxwmgd4&interval=60

Here are a couple of notable reported cases where we have been successful in obtaining information from third party service providers to identify defendants:

• A.B. v. Bragg Communications Inc., 2010 NSSC 215
  
• Mosher v. Coast Publishing Ltd., 2010 NSSC 153

Mirror, mirror on the web

This week's Lawyers Weekly quotes me in an article by donalee moulton on monitoring and protecting your online defamation. See: Mirror, mirror on the web.

The Slow Demise of Defamation and the Privacy Torts

Daniel Solove at Concurring Opinions has some interesting thoughts on the progressive demise of defamation and privacy tort cases in the United States:

Concurring Opinions - The Slow Demise of Defamation and the Privacy Torts

I think this turn of events is unfortunate. People used to resort to self-help (violence and duels) to vindicate their reputations. Civilized society replaced these methods with a more humane alternative — using the court system to resolve disputes. Sadly, that method is increasingly becoming too expensive and cumbersome for people to use.

Some commentators argue that today, people can more readily have the record corrected or improve their reputations by posting good things about themselves online. But it is hard to manipulate Google and other search engines to make the good information crowd out the bad. The problem is that bad information is often more interesting and juicy — and hence more popular. And popularity is the key to getting information to the top of search engine results. Many people have short attention spans and don’t care to dig to find out the boring truth or other facts about a person.

We need to have an outlet in civilized society for people to vindicate their reputations. We need to have some meaningful way to prevent defamation and invasion of privacy. Otherwise, people will spread all sorts of damaging rumors and gossip about each other online, and victims will return to self-help methods. That would be a big step backwards.

I don't have any Canadian stats at my fingertips, but I would hazard a guess that defamation is flourishing in Canada while the privacy torts are stuck in neutral.