The Ontario Court of Appeal's decision on Wednesday recognizing a right to sue for damages for outrageous violations of privacy is a good example of sensible judicial innovation. It is an adaptation that reflects life in the digital age.
Laws against trespass, breaking and entering, burglary, and unreasonable search and seizure – protecting bricks-and-mortar rights, one might say – remain very important, but the same principles that underlie those older rights need to be complemented, in order to deal in an analogous way with what Mr. Justice Robert Sharpe – who wrote the three-judge panel's decision – calls informational privacy. The result is a new tort – that is, the civil-lawsuit equivalent of a crime – by the name of “intrusion upon seclusion.”
In this case, a Bank of Montreal employee called Winnie Tsige broke repeatedly – 174 times – into the bank accounts of Sandra Jones, the former wife of a man with whom she was in a relationship; Ms. Jones worked for a different branch of the same bank. When confronted, Ms. Tsige acknowledged that she had no legitimate purpose in spying on Ms. Jones.
Mr. Justice Sharpe is a prudent judge, by no means one to seek novelty for the sake of making a splash. The decision is well grounded in various more or less tentative judicial opinions about privacy, and in Charter jurisprudence.
Above all, his reasons are measured. The damages for violations of privacy are not to be more than $20,000, except in very unusual circumstances. Perhaps most notably, the decision shows full
respect for freedom of the press and freedom of expression, prin-
ciples that had no relevance to Ms. Tsige's prying.
There is every reason to hope that, after the Jones v. Tsige case, hacking such as was undertaken by some employees of News of the World – happily, now defunct – would be subject to private lawsuits for damages, but that ethical and responsible journalism will not be affected.
Back in 1979, the Ontario of Appeal tried and failed to create a tort of discrimination, with little grounding in the evolution of the law; the Supreme Court overturned that decision. This week, Mr. Justice Sharpe and his colleagues have shown how to apply old principles in the age of high technology.