PRIVACY LAW AND JOURNALISTIC PRACTICES

1. PRIVACY LAW AND JOURNALISTIC PRACTICES Jeremy Taylor September 17, 2012

2. General Overview Two categories of potential pitfalls: • Privacy legislation and exceeding the boundaries of journalistic purposes; • Developing common law liability for invasion of privacy.

3. Applicable privacy legislation • Provincial legislation: Personal Information Protection Act, R.S.A. 2000, c. P-65 (“PIPA”) • Federal legislation: Personal Information and Protection of Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”) • Context will determine which one applies, but concepts basically the same

4. General prohibitions on use and disclosure • Both PIPA and PIPEDA prohibit gathering, use, or disclosure of personal information without consent, subject to certain exceptions • Consequences of breach: cease and desist order to organization, order for return or destruction of information, potential court order for damages (PIPA) • Complaints adjudicated by adjudicators appointed by Office of Information and Privacy Commissioner

5. What is personal information? • PIPA s. 1: “personal information” means information about an identifiable individual • Very big basket: includes name, age, address, as well as depictions of individuals, amongst many other things

6. Then why do we broacast this kind of information all the time? • The prohibitions on the collection, use and disclosure of personal information do not apply to information used or disclosedfor “journalistic purposes” • PIPAexception, s. 4(3)(c): “if the disclosure is for journalistic purposes and for no other purpose” • PIPEDA exception, s. 4(2): “personal information that the organization collects, uses, or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose”

7. What does the Privacy Commissioner think “journalism” is • OIPC cases have used definition from Webster’s: 1. Collection, writing, editing and dissemination of news through the media. 2. Materials written for publication in the media. 3. A style of writing used in newspapers and magazines, characterized by the direct presentation of facts or occurrences with little attempt at analysis or interpretation. • Cases seem to ignore (1) and (2), and focus on (3)

8. Example: Calgary Herald (Order P2005-004) • Publication of location of a person’s residence, and that the residence was subject to a search warrant, with a photo of the house including the address number • No breach, because “there was no evidence that the Calgary Herald had any purpose other than presenting facts”

9. What are not purely journalistic purposes? • Information published for the purposes of generating revenue (ex. advertisements) (Order P2007-14) • Retractions (Order P2007-14) • Potentially anything that does not purely involve a “direct presentation of the facts”

10. Charter of Rights Issues • Alberta Court of Appeal has recently decided case seriously questioning whether privacy legislation is consistent with Charter right to freedom of expression: UFCW v. Alberta, 2012 ABCA 130 • Right now, appears that Courts will not subject organizations to privacy legislation penalties, even where the information is used for free expression that cannot be justifiably limited in a free and democratic society • This issue will likely be further appealed to the Supreme Court of Canada

11. Social media problems • “Sole purpose” requirement: ex. just because a tweet is from a journalist does not mean the communication is for “journalistic purposes” or “solely for journalistic purposes” • Social media seems particularly prone to wholly or partly “non-journalistic” communication, ex. promotional communication, personal chatter to friends, etc. • Republication issues: ex. hard to say that re-tweets of comment on are a “direct presentation of the facts” • Is publication in social media even “media” for the purposes of the OIPC’s understanding of “journalism”?

12. Risk Tolerance • At present, Charter right to freedom of expression seems to trump narrow scope of “journalistic purposes” exception in PIPA / PIPEDA • But issue has not been settled in the Courts • Still possible that restrictive provisions of PIPA and PIPEDA may be upheld by Supreme Court of Canada

13. Practical considerations • If you are publishing personal information (including photos) through social media or otherwise, consider the reason you are publishing that information • If the purpose of the communication is not solely to directly present the facts about a newsworthy issue (ex. is partly for promotional, personal, or other purposes), the communication might breach PIPA or PIPEDA, and may expose Global to liability for privacy breach • Consider whether the risk is worth it

14. Common law – invasion of privacy • Presently Alberta courts have not recognized the right to sue for invasion of privacy, outside the limited provisions of PIPA • As of January 2012, Ontario Courts have recognized right to sue for invasion of privacy despite whether there is any breach of privacy legislation: Jones v. Tsige (2012 ONCA 32)

15. Jones v. Tsige (Ontario, 2012) • Not journalism case: estranged wife accessing new girlfriend’s electronic banking records • Court: person can sue for “intrusion upon seclusion” • While not a journalism case, based on reasoning in at least one journalism case (ex. Saccone – publishing transcript of private telephone conversation) • The approach laid out in Jones will likely apply regardless of whether the case involves journalism or not

16. What is intrusion upon seclusion • The intrusion must be intentional or reckless • Must have invaded plaintiff’s private affairs or concerns • Intrusion must be of a type that would be highly offensive to a reasonable person

17. Private affairs or concerns • Examples: intrusions into matters such as financial or health records, sexual practices and orientation, employment, diary, or private correspondence (perhaps also publishing photos of a topless princess suntanning?) • However, will be liable for these kinds of intrusions only if they can be characterized as “highly offensive” • Likely flexibility to journalists: Court says that freedom of expression and whether matter is of public interest figure into whether intrusion is offensive

18. Social media issues • Using material gained either first or secondhand from social media sources may give rise to liability exposure • Unclear how individual judges will treat personal information posted to social media – are these personal communications or not

19. Reducing exposure to interference with personal seclusion claims • Consider what expectation of privacy the person has in the information (did they know they were making information publicly accessible) • Consider the nature of the information (i.e. does it arise from personal communications or financial records or information on highly personal matters like sexual orientation); • Balance the degree of the public interest in receiving the information

20. Example - voicemails • Example from Troubleshooter story re: problematic rental excavator • Low expectation of privacy in voicemail v. phone conversation • Not highly personal information like financial records or sexual orientation • Relatively high level of public interest in publishing the information • Low probability of liability