Case Summary and Outcome

The Supreme Court of Canada unanimously found that a celebrity’s privacy interests outweighed a magazine’s right to freedom of expression. Éditions Vice-Versa published published a photograph of Pascale Claude Aubry sitting on a public sidewalk without Aubry’s consent. The Court reasoned that the magazine had not demonstrated sufficient public interest in the photograph, and thus violated Aubry’s right to privacy. The was the first case in which the Supreme Court balanced the right to privacy against the right to freedom of expression as enshrined in the Quebec Charter of Human Rights and Freedoms.

Facts

Pascale Claude Aubry brought a civil tort action against a magazine, Éditions Vice-Versa (Éditions), for publishing a photograph of Aubry while she was sitting on a step on a public sidewalk in Montreal. Both parties acknowledged that the photograph was taken in a public place and was taken without Aubry’s consent.

Three provisions of the Quebec Charter are most relevant here. Section 3 of the Quebec Charter states “[e]very person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.” Section 4 states “[e]very person has a right to respect for his private life.” Finally, Section 9.1 stipulates that, “[i]n exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebéc.”

Aubry argued that Éditions violated her right to privacy under Section 4 of the Quebec Charter. Éditions countered that restricting the publication of a photograph taken of a public figure in a public place would impermissibly burden its freedom of expression under Section 3 of the Quebec Charter. The lower court sided with Aubry and awarded her damages. Éditions then appealed.

Decision Overview

The Supreme Court of Canada upheld the lower court’s verdict for Aubry, reasoning that the rights to privacy and to freedom of expression, as enshrined in the Quebec Charter, have to be interpreted in light of Section 9.1, which stipulates that in exercising the rights enshrined in the Charter, each person must “maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebéc.”

The Court determined that the language of Section 9.1 required it to balance Aubry’s right to privacy against Éditions’ right to freedom of expression. In balancing the rights, the Court found that Aubry’s privacy right to her image outweighed the public’s right to information because Éditions had made no showing that the image was a matter of public concern.

A minority of judges dissented on the issue of damages, arguing that they had not been proven.