Date: Wed, 14 May 2008 13:56

From: Francois Larocque

Subject: Breach of Privacy a tort now?

Dear Neil,

Thank you for passing that on.

In Ontario, the law on this issue is definitely in flux. Along with the Somwar case making its way through the courts, there is also a Small Claims Court decision last year that attempted to define the substance of a new tort of breach of privacy. While one small claims swallow does not make a new tort, it would seem the provisional answer to your question, as far as Ontario is concerned, is yes.

See: Caltagirone v. Scozzari-Cloutier, [2007] O.J. No. 4003 (OSCJ, Sm. Cl.)

See also here.

Best wishes,
François J. Larocque

Professeur adjoint / Assistant Professor
Directeur du programme national / National Program Director
Faculté de droit (common law) / Faculty of Law (Common Law)
Université d'Ottawa / University of Ottawa
57 Louis Pasteur
Ottawa (Ontario)
K1N 6N5

T: (+1) 613 562 5800, 3283

-------- Message d'origine--------
De: Neil Foster 
Date: mer. 2008-05-14 02:03
Objet : ODG: Breach of Privacy a tort now?

Dear Colleagues,

I see that J K Rowling has succeeded now in getting a full hearing on her claim that her son has an actionable claim for breach of privacy when photos of him in his stroller with his parents were taken without permission and later widely published - see Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 (7 May 2008).

I found it interesting that Sir Anthony Clarke MR calls the action a "tort" more than once - at [24] (ii) (quoting Lord Nicholls in Campbell v MGN) and at [27]. I always thought that Lord Nicholls' comment was a slip of the judicial tongue, the action traditionally being developed from the equitable action for breach of confidence, not in tort. But has it now "morphed" into a tort? (Of course it has in New Zealand, in Hosking v Runting [2005] 1 NZLR 1, though it is interesting to see that this decision in Murray now expressly disagrees with the balancing of rights in Hosking, and suggests at [53] that there may even be some scope for revisiting it in the new NZSC.)

Or is it a tort now because with the advent of the European Human Rights convention article 8 of that Convention is protected by a tort action for breach of statutory duty?

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