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The law of privacy

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The research we have undertaken indicates that while the law has recognized the right to privacy and has protected that right, the courts in England and Canada have generally preferred to describe the right to privacy in terms of property rights. The concept of privacy was recognized in English law in the Middle Ages. In the 14th century, eavesdropping was an offence indictable at Common Law:

Eavesdroppers, or such as listen, under walls or windows or the eaves of houses, to hearken after discourse, and thereupon to form slanderous and mischievous tales are a common nuisance and presentable at the Court Leat; or are indictable at the sessions and punishable by fine and… finding sureties for their good behaviour. (Blackstone’s Commentaries, 15th ed. 1809, p. 168)

In 1709, the value of privacy was recognized in Cherrington v. Abney Mill(1709), wherein dealing with the law of ancient lights, the court said:

It is certain they cannot alter the same to the prejudice of the owner of the soil, as if before so high as they could not look out of them into the yard, shall not make them lower and the like; for privacy is valuable. (2 Vern. 646 23 E.R. 1022)

Rights of privacy have also been protected under the name of copyright: Miller v. Taylor (1769) 4. Burr. 2303, 98 E.R. 201, per Yates J., p. 2379, E.R. 242.

It is certain that every man has a right to keep his own sentiments, if he pleases: he has certainly a right to judge whether he will make them public, or commit them only to the sight of his own friends. In that state the manuscript is, in every sense his peculiar property; and no man can take it from him or make any use of it which he has not authorized, without being guilty of a violation of his property.

See also Gee v. Pritchard et. al (1818) 2 Swans. 426, 36 E.R. 678.

Property right in letters, trespass, nuisance and defamation have also been headings under which the right to privacy has been protected at Common Law. Exchange Telegraph Co. Ltd. v. Gregory & Co. (1896) 1 Q.B. 147; Routh v. Webster (1847) 10 Beav. 561, 50 E.R. 698; Hickman v. Maisey (1900) 1 Q.B. 753; Monson v. Tussauds Ltd. (1894) 1 Q.B. 671; Tolley v. J.S. Fry & Sons Ltd. (1930) 1 K.B. 467.

Implied contract was the basis of relief in photograph cases in which the court protected the rights of persons photographed. Pollard v. Photographic Company (1888) L.R. 40 Ch. Div. 345 and Stedall v. Houghton (1901) 18 T.L.R. 126.

Breach of confidence was the ground relied upon by the court to prevent the defendant from publishing an account of confidences exchanged between himself and his former wife, t he plaintiff, while they were still married: Argyll v. Argyll (1965) 1 All E.R. 611.

The clearest statement of the English law of privacy is to be found in the historic decision of Prince Albert v. Strange et al (1849) 2 De G. & S.M. 652, 64 E.R. 293, where the plaintiff sued for an injunction to restrain the defendants from printing and selling copies of etchings made by him and Queen Victoria for their own amusement. The defendants had surreptitiously acquired copies of the etchings and as there was no question of the plaintiff having authorized publications of same, the Court had no hesitation in granting the injunction requested.

The Court stated that the grounds for the decision could be found in breach of trust, breach of confidence, breach of an implied contract, or violation of the plaintiff’s property right in the etchings. While the grounds for the decision were thus consistent with the pattern already established in the above cases, it is clear from the report that both the pleadings of the plaintiff and the reasoning of the Vice Chancellor (Sir J.S. Knight-Bruce) who heard the application were framed in the language of privacy. The Solicitor General (Sir John Romilly) in pleading for the plaintiff stated:

It has been said that there has been no violation of the right of private property. But there has been the abstraction of one attribute of property, which is often its most valuable quality, namely privacy.

Further, (p. 677, E.R. 304):

If the principle is to prevail that a person may get the production of another in any manner, and then publish such account of them to the world as he likes, a fatal blow will be struck to all privacy no matter whether it exists in a lofty station… or whether it exists in the humblest ranks of life.

This argument was accepted fully by the Vice Chancellor. His Lordship made it clear in his judgment that his main concern was to prevent any continuance of the defendants’ unwarranted breach of the plaintiff’s privacy. He said, in part (p. 698, E.R. 313):

I think therefore, not only that the defendant here is unlawfully invading the plaintiff’s right, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventative remedy of an injunction, and if not the more, yet, certainly not the less because it is an intrusion—an unbecoming and unseemly intrusion—an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man—if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic affairs—into a home (a word hitherto sacred among us)….

It is also clear that the Vice Chancellor acknowledged that the right that he was recognizing was in fact a right to privacy even though he felt constrained to base his decision on the numerous grounds mentioned above, for he stated (p. 695, E.R. 313):

Upon the principle, therefore, of protracting property, it is the Common Law, in cases not aided nor prejudiced by statute, to shelter the privacy and reclusion of thoughts and sentiments committed to writing and desired by the author to remain not generally known.

When the matter went to a high court on the question of whether or not this injunction granted by the Vice Chancellor should be continued and be extended to prevent a public display of the prints in question on the defendant’s premises, the Lord Chancellor, in extending the injunction said (p. 26, E.R. 1312): “In the present case, where the privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether.”

English decisions where courts extended the conventional areas of the law in order to give relief to plaintiffs, afforded strong policy ground for recognizing a separate right to privacy. Such recognition would also afford greater certainty to the existing areas of tort, contract and property law and assure a plaintiff a just cause of action and a remedy for wrongs done. Rights to privacy exist and must be protected for corporations, societies and partnerships. We should have protection for the right to acquire and keep secret information. The Companies Act, R.S.B.C. 1960, C. 67, s. 22(1) (d) and (x), appears to encompass such rights.

In Canada, enforcement of rights to privacy by our courts has also been recognized, although no name has been given to the right, nor clear grounds set out as basis of such a right. In Robbins v. the Canadian Broadcast Corp. (1958) 12 D.L.R. (2d) 35., the plaintiff suffered ridicule and abuse as a result of the publication in a television program of a letter he had written to the defendant corporation and was granted relief, although Canadian decisions on the subject are rare.

A recent judgment of Dohm, Jr. of the Supreme Court of British Columbia recognized that words spoken by persons that were secretly tape recorded were the property of the persons who spoke the words, and the learned judge restrained further eavesdropping upon the plaintiffs and their union members in convention by electronic means and otherwise, and further restrained the defendants from making recordings and from publishing the content of the tape recordings. The learned judge further granted the plaintiffs liberty to apply to have the tape recordings erased and notes destroyed. (Angus McPhee et al v. E.P. O’Neale et al S.C.B.C. Action No. 29/67, January 13, 1967.)

It is submitted that the right to privacy is the highest form of freedom and has been recognized in every civilized country and is recognized by the Canadian Bill of Rights, R.S.C. 1960, c. 44, Part I of which is appended to this brief.

Suggested legislation

The Bill of Rights should recognize the right to privacy as being akin to the right to the exclusive use of property. It should, however, be clearly declared and defined as a substantive right and remedies provided for abuse or intrusion upon this right. The advent of modern technological means of listening to and recording private transactions and the common and unauthorized use of such devices and simplicity of intrusion upon privacy, demonstrate the need for such legislation.

Civil rights being, by Section 92 of the B.N.A. Act, within the sphere of provincial legislative competence, we welcomed the enactment by the B.C. government in 1968 of the Privacy Act. This was an encouraging step toward recognition of the right to privacy, but urge that amendments be made to fortify the right still further. We suggest that the provincial statute be expanded or amended to embrace the following provisions:

A definition of privacy or private activity. The definition should include the writing or uttering of any words, or engaging in any act in a place normally regarded as private, and that the speaker or doer intends should be private, and should include a place of residence, whether permanent or temporary, or whether owned, rented or licensed. A hotel room would thus become the home of a guest during his period of lawful occupancy, as would an automobile owned or rented and the office of an individual, a company of a trade union. (This is not included in the present Privacy Act.)

There should be a clear declaration that privacy is a civil right, possessed and to be enjoyed by every person within the province, by every corporation and unincorporated society, and by every trade union. (This is not included in the present Act.)

Any invasion of privacy by anyone, including police officers and private detectives, and consisting of listening in, recording, or in any way publishing conversations or activities to which they are not parties without the consent of the parties to the conversation or activities, should be prohibited, regardless of the means (electronic or otherwise) employed for listening or recording. (This requires deletion of Section 3(1) of the present Act.)

Any person considering that his right of privacy has been invaded should have certain remedies, including: the right not to have any information unlawfully obtained published in any manner or used against him in any judicial or other proceeding; (This requires deletion of Section 3(1) of the present Act, addition of a new section (see 6 below), and amendment of British Columbia’s Evidence Act.)

  • the right to sue for exemplary damages;
  • the right to obtain an injunction against;
  • the right to prosecute in certain circumstances. (None of these specific remedies are spelled out in the existing Act.)

Anyone asserting an invasion of privacy would have the onus of proving that on the occasion complained of he or she did possess the right of privacy, i.e., that the place was private and that it was the intention to speak or act privately. (Not included in the present Act.)

There should be a prohibition against the use of information obtained by an unlawful invasion of privacy before tribunals not governed by the Evidence Act, and a prohibition against the publication by any means of such information. Such legislation would not offend against the civil liberties of the person doing the bugging, for he has no right to eavesdrop, nor has he a right to the contents of private communications. (This requires the addition of a new section and the deletion of Section 3(1) from the present Act.)

Should police and private detectives be excepted?

We have considered whether the prohibition should apply to all eavesdropping or whether certain exceptions should be permitted, as in the case of police investigating crimes or in situations thought to involve the security of the state. Our conclusion is there should be no such exceptions. There is ample legislation now in existence, such as the Official Secrets Act, which protects the interest of the State by granting extraordinary powers and by creating serious offences. Police obtain information by use of electronic equipment in secret and will continue to do so in secrecy whether it is lawful or unlawful for police authorities to continue such activities. In considering this aspect of the right to privacy, it is our view that the invasion of privacy is the gravamen and that the truth or falsity of information obtained by such means is irrelevant.

The arguments against the use by police or private detectives of electronic eavesdropping devices include the following:

  • The possibility of irresponsibility in the obtaining of such evidence and the unauthorized disclosure, whether intentional or unintentional, of information so obtained; thus, a person either a party to the conversation or the subject of the conversation may have his reputation destroyed or seriously damaged without remedy.
  • Allowing legal electronic surveillance would result in a restriction of freedom of speech and individuality.

    The fundamental fact is that our western culture defines individuality as including the right to be free from certain types of intrusions. This measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A person whose home may be entered at the will of another, whose marital and familiar intimacies may be overseen at the will of another, whose conversations may be overheard at the will of another, is less of a person, has less human dignity, on that account. The person who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant. (Bloustein, Edward J., “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser”, N.Y.U.L. Rev. 962 (1964) at 973.)

  • Privileged communications, e.g., between husband and wife, solicitor and client, parishioner and priest, doctor and patient, would be wholly unprotected.
  • No cause of action, either civil or criminal, is available to the injured party.
  • The availability of long distance devices and the difficulty of detection makes successful prosecution practically impossible.
  • A right of individuals should not be relinquished simply to make law enforcement easier, or the obtaining of divorce evidence or industrial information simple and tempting.
  • An invasion of the rights of individuals allegedly in the case of protecting their right, e.g., from criminals, would tend to breed a disregard of civil rights and law and a disrespect for the courts which accept and publish private communications illegally obtained.
  • Proving the accuracy and authenticity of tape recorded evidence would result in interminable technological argument in courts and would delay unduly the course of trials.
  • The ease of editing and reconstructing tape recorded transactions makes their authenticity questionable.
  • The use of such evidence would destroy the widely recognized right of a person against self-incrimination.
  • Allowing use of recording devices would readily expose persons to blackmail.
  • Procedural safeguards, e.g., court-ordered warrants, would contribute to cumbersome and interminable wrangling and would likely be ineffective.

Other recommendations

The use of eavesdropping devices would be reduced if the prospect of giving them in evidence in courts were eliminated. This could be achieved provincially by an amendment to the British Columbia Evidence Act providing that evidence obtained by means of electronic eavesdropping devices be inadmissible in our courts. It would appear that attempting to apply penal sanctions to the use of electronic eavesdropping devices by provincial legislation might not be constitutionally permitted by the British North America Act.

The B.C. Civil Liberties Association recommends, however, that the Commissioner recommend to the Honourable Attorney General and the Government of British Columbia that they in turn recommend to the Minister of Justice or the appropriate federal authorities that the Canada Evidence Act be amended to accord with the proposed amendment to the British Columbia Evidence Act, so that all evidence obtained by use of eavesdropping devices without the consent of the parties to the transactions be inadmissible in evidence in Canadian courts.

We would also recommend that the Minister of Justice be asked to consider amendments to the Criminal Code affording sanctions and prosecution for the unlawful use of eavesdropping devices.

Conclusions

There exists a definable right to privacy.

Present provincial legislation does not go far enough to protect citizens and groups adequately against invasions of privacy, and should therefore be strengthened by making appropriate amendments to the Privacy and Evidence Acts.

Appropriate recommendations should be made by the B.C. government to the Minister of Justice to provide a uniform federal and provincial approach to the subject of invasion of privacy.