Jared Mackey, ‘Privacy and the Canadian Media: Developing the New Tort of “Intrusion Upon Seclusion” with Charter Values’

With the recent recognition of the new tort of “intrusion upon seclusion”, Canadian privacy law has experienced a fundamental and modernizing shift. In Jones v Tsige, the Ontario Court of Appeal held that a person is liable for an invasion of privacy, if “he or she intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns […] if the invasion would be highly offensive to a reasonable person.” This new tort has the potential to dramatically impact society, media, and our core conceptions of individual privacy. In this paper, I engage the perspective of the Canadian media to analyze this legal shift against the competing Charter values of freedom of expression, free press, and individual privacy. I argue that in order to achieve a proper balance in this context, Canadian courts should be guided by the recent defamation law analysis from the Supreme Court of Canada in Grant v Torstar Corp. To this end, I propose a two-stage framework for principled application of the tort and suggest that in the media context, Canadian courts should recognize a principled defence of “Responsible Newsgathering on Matters of Public Interest.” This analysis only begins the debate. The introduction of this tort should encourage immediate discussion of how to best foster its growth with Charter values.

Jared A.Mackey, “Privacy and the Canadian Media: Developing the New Tort of ‘Intrusion Upon Seclusion’ with Charter Values“. (2012) 2:1 University of Western Ontario Journal of Legal Studies 3.

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