Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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The Court of Appeal for Ontario recognized for the first time the common law tort of “intrusion on seclusion.” The Court found that the key component of this tort is the intent the intruder: an intruder must intentionally intrude upon the privacy of another and must do so in a way that would be highly offensive to a reasonable person.
Sandra Jones and Winnie Tsige are both employees of the Bank of Montreal. Jones and Tsige did not personally know one another, nor had they ever worked together. However, Jones was involved in a romantic relationship with Tsige’s ex-husband.
Over the course of four years, in direct breach of her professional and ethical responsibilities to the bank, Tsige viewed Jones’ personal bank account information 174 times. Jones became suspicious that Tsige might be accessing her account information, so she complained to the bank. When confronted by the bank, Tsige admitted to viewing the information, apologized, and claimed she had done so because she was in a dispute with her ex-husband regarding child support payments and wanted to know whether he was giving money to Jones. Tsige never used the Jones’ bank account information for any purpose, and she never disclosed the information to any third parties.
The bank disciplined Tsige by suspending her for one week without pay and denying her a bonus. Jones brought a tort action against Tsige for invasion of privacy, claiming $90,000 in damages. The lower court dismissed the action in a summary judgment on the ground that Ontario courts had never recognized a tort for invasion of privacy. Jones appealed.
The Court of Appeals for Ontario reversed and remanded the lower court’s decision, recognizing the common law tort of “intrusion on seclusion” for the first time in Ontario. In reaching its decision, the Court looked to general trends of Canadian and international law and concluded that both Canadian law and general legal trends are increasingly concerned with protecting the privacy interests of individuals. The Court also looked to the Canadian Charter of Rights and Freedoms and concluded that the right to privacy set out in the Charter endorsed the Court’s recognition of a common law tort protecting privacy.
The Court articulated that, in order for a tort claim based on invasion of privacy to succeed, it must be brought against “[o]ne who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns.” Such an intruder will be “subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision recognizes the common law tort of intrusion upon seclusion for the first time in the province of Ontario. The tort can be viewed as a contraction on expression because it contracts the ability of individuals to access information about other individuals through offensive invasions of privacy. However, this tort can also be viewed as an expansion on the freedom of expression because it protects individuals’ private information, causing individuals to be more candid in private expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Canada is a common law country. The lower courts of Ontario will be bound by the appellate court’s decision in this case. Ontario’s trial courts must now recognize the tort of intrusion upon seclusion as articulated by this decision.
Let us know if you notice errors or if the case analysis needs revision.