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In an area when most of us have a high-resolution camera in our pockets (regardless of whether we use it or not) and the seemingly endless documentation that comes along with having this incredibly accessible technology at our fingertips, it has likely occurred to some of you, “Was I in that selfie? Do I really want to be in the background of that person’s video?”

Woman jogging - breach of privacy

When an Ottawa woman discovered that a video clip of her jogging along the Ottawa River had been used in an advertisement for a local real estate developer, she decided to take matters into her own hands and took the advertising firm who prepared the advertisement, Waterbridge Media Inc., to court for breach of privacy and appropriation of her personality.

In ruling for the plaintiff, Ms. Basia Vanderveen, Justice Leclaire of the Ontario Small Claims Court found that, “I have no hesitation in concluding that in capturing the image of Mme Vanderveen and publishing it in a commercial video (…) the defendant committed the tort of intrusion upon seclusion. There can be no doubt (…) that the defendant’s conduct in taking her picture was intentional; that was admitted.  There existed no legal justification for taking her image or filming her running.  I find that a reasonable person (…) would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her.” (edited for succinctness)

You can read more about the case here and the full decision is available here.

Although the damages awarded in this case were relatively modest, this decision sets an interesting precedent in Ontario law. It does not take a particularly active imagination to see how this ruling carves a path for future litigants who feel that their privacy was invaded and personality appropriated for commercial purposes.

As more and more aspects of our lives become published (whether we like it or not) this decision certainly shall be cited at all levels of Canadian courts for years to come.

For more information on privacy, contact our Intellectual Property group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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