Privacy Breach … While Jogging Down a Public Path?

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By Richard Stobbe

An online video shows someone jogging on a public pathway during a 2-second clip. Let me get this straight… does this constitute a breach of privacy rights? According to an Ontario court, the answer is yes.

This is a scenario that is likely repeated every year across the country in a variety of industries. In this case, a real estate developer engaged a video developer to produce a sales video for a residential condominium project. To capture the “lifestyle” of the neighbourhood, the video developer shot footage of local shops, bicycling paths, jogging trails, and other local amenities. In the course of this project, the plaintiff – a jogger – was caught on video, and after editing, a 2-second clip of the plaintiff was included in the final 2-minute promotional video.

Like all video, this one was posted to YouTube, where it lived for 1 week, before being taken down in response to the plaintiff’s complaints.

In Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435 (ON SCSM), the court considered the claim that this clip of the jogger constituted a violation of privacy rights and appropriation of personality rights.   In the analysis, the court considered the tort of “intrusion upon seclusion”, which was designed to provide a remedy for conduct that intrudes upon private affairs where the invasion of privacy is considered “highly offensive”.

The court in this case decided that a 2-second video clip of someone jogging on a public pathway does constitute a “highly offensive” invasion of a person’s private affairs. The plaintiff was awarded $4,000 for the breach of privacy rights and $100 for the appropriation of personality.

Some points to consider:

  • It is unclear why the court did not spend more time considering the issue of “reasonable expectation of privacy”. A number of court decisions have looked at this issue as it relates to video or photography on public beaches, public schools and other public places. This is not a new issue in privacy law, but it appears to have been given short shrift in this decision.
  • The impact of this decision must be put into context: it is an Ontario small claims court decision, so it won’t be binding on other courts. However, it may be referred to in other cases of this type. The decision is unlikely to be appealed considering the amounts at issue, so we probably won’t see a review of the analysis at a higher level of court.
  • Consider the implications of this approach to privacy and personality rights in light of the use of drone footage in making promotional videos – something that is becoming more common as costs lower and access to this technology increases.
  • When entering into contracts for any promotional or marketing collateral – website content, images, video footage, film, advertisements, print materials – both sides should review the terms to confirm who bears the risk of addressing complaints such as this one, and who bears the responsibility for obtaining consents or releases from recognizable individuals who appear in the media content.

 

For advice regarding privacy rights, personality rights, drone law, and video development contracts, contact Field Law.

Calgary – 10:00 MST

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