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Protecting Your Privacy
Bryan G. Embree
Bryan G. Embree
Bryan joined Cobb & Jones LLP in 2005 and practiced law in the areas of civil litigation, including corporate and commercial litigation, employment law and administrative law, and matrimonial litigation from 2005 - 2010.

An issue that sometimes arises between parties who are in a dispute is the question about what one party can say about the other, when one party feels maligned by the statements of the other. The concern is often expressed as a "privacy" issue -- that person is breaching my right to privacy! While it may be surprising to many individuals, the fact is that there is no general right to privacy in Canada for which a breach is actionable in law, that is, for which a law suit can be commenced. The confusion in peoples' minds about privacy rights, it would seem, comes out of a misunderstanding that the Freedom of Information and Protection of Privacy Act protects against beaches of privacy between individuals. That Act (and other Acts of a similar nature) protects against the state, or other institutions that are under state influence, from providing private information about individuals to third parties. The Acts do not provide for privacy protection between individuals as is often believed.

The law does provide a legal remedy for defamation, which is between individuals, be it for liable (the written word) or for slander (the spoken word), that causes harm to the person maligned. This is a common law remedy available to innocent individuals who are defamed by another in a public way. Defamation is really not about breach of privacy per se but more about malicious or negligent misstatements of truth about another which may have implications for the privacy of an individual. Importantly, in a defamation action, truth is a complete defence to a defamation claim, meaning that anyone can say anything about another person as an individual, publicly, if it is true.

The message that I am providing is that if you wish to protect your privacy as an individual, you should take steps to do so. The statutory laws against the provision of private information about individuals found in the Privacy Acts will not protect you against an individual who speaks about you negatively, unless those negative statements are so widespread, untrue and harmful as to constitute defamation.

The reason that there is no common law right to privacy is that that right would conflict with constitutional rights to freedom of speech, association and expression. Given that these are fundamental, constitutional rights under the Charter of Rights and Freedoms it is unlikely that any common law right to privacy can or will develop in the future. No law is permitted to conflict with Charter principles.

There will not be a legal remedy for you if you fail to protect your own privacy, outside of a defamation action in where widespread, harmful untruths are spread.

Ironically, while most individuals shudder at the thought of a breach of their own privacy, with the advent of Facebook and Twitter, many individuals are exposing themselves to review by others. It is not uncommon for individuals to make inappropriate statements on these websites, or to provide potentially embarrassing photographs of themselves in a drunken state or in some other compromising manner. It is increasingly common for prospective employers to review sites of this nature as part of their pre-employment investigation. What's there could negatively affect employment or other opportunities! As stated, if you wish to protect your personal privacy, then take steps to do so.

Bryan Embree is an associate at the law firm of Cobb & Jones LLP

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