Category: Consent

CASL at 10 – Parameters

Post author By mattshepherd
Post date May 16, 2023

Signs detailing whether or not dogs are allowed in a park. — Are dogs allowed, with exceptions, or are all dogs forbidden (again with exceptions)?

This is part two of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of enforcement in 2015. Crosslinks will be added as new parts go up. Here’s Part 1, Terminology.

Before we dig into what CASL does, let’s look at what it’s for. This whole series kicked off as a work-related question around student subscriptions to Faculty newsletters,¹ so that’s a jumping off point for what I’ll be exploring here.

Oh! Yes! I am not a lawyer and this is not legal advice. Just a reminder (and a catchy tune, if I do say so myself).

The first organizing question, then, is “are school newsletters subject to CASL?”

The most safe answer is “yes.” But that’s not an entirely accurate answer. If you are very diligent about content and ensuring you’re always on the right side of not including CEMs (see below), it’s feasible to have a newsletter program that – by diligently avoiding CEMs entirely – is outside of CASL’s scope.

Law firm Borden Ladner Gervais prepared an overview for Colleges Ontario, vexingly not available on their site but available on some college sites, including that of Algonquin College.

It is very much a document that errs on the side of caution, and is very prescriptive; to understand it, it’s necessary to understand some of the basic premises of CASL.

All commercial messages are forbidden, and CASL creates exceptions to a general prohibition.

All commercial electronic messages (CEMs) are forbidden by default.

This isn’t a situation where they are allowed, with some prohibited: they are all forbidden, except under circumstances that the law lays out.

This might seem obvious but was kind of hard for me to wrap my head around. Going into this, I had the general sense that the law hews toward a “if it’s not forbidden in the law, it’s okay”, or as WR Lederman put it:

What is not forbidden is permitted, but certain things must be and are forbidden.²

I kind of assumed it was like a sign at a park about dogs. “Dogs Welcome!” Generally speaking, you can bring your dog there. And then it specifies that some types of dogs, or certain breeds, are not allowed (“No Pit Bulls”, or “No Aggressive Dogs,” or “No Dogs Over 10 lbs.”). Dogs are permitted, generally speaking, and there are rules governing outliers.

CASL is actually like a sign that says no dogs allowed and then goes on to say “except these specific breeds” or “except dogs of a certain size”. CEMs fall under the “…but certain things must be and are forbidden.” end of Lederman’s sentence above.

The legislation carves out exceptions to a prohibition, rather than prohibiting elements of a broadly allowed behaviour.

CEMs are prohibited. Period. The only exceptions under which CEMs are allowed are those detailed in CASL.

All dogs are welcome (except certain dogs), vs. no dogs are allowed (except certain dogs). CASL keeps *all* the dogs out, but makes provisions for *certain* dogs being okay. I have tried to make a “who let the dogs out” joke here, but it’s just not coming together.

What is a CEM?

I’d recommend you open the Act in a new tab before continuing: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html

Before we get to how the Act defines a CEM, let’s hop through a couple of other definitions from Part 1 of the Act:

1(1)
commercial activity: means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, whether or not the person who carries it out does so in the expectation of profit, other than any transaction, act or conduct that is carried out for the purposes of law enforcement, public safety, the protection of Canada, the conduct of international affairs or the defence of Canada.

(…)

electronic address: means an address used in connection with the transmission of an electronic message to

(a) an electronic mail account;

(b) an instant messaging account;

(c) a telephone account; or

(d) any similar account.

(…)

electronic message: electronic message: means a message sent by any means of telecommunication, including a text, sound, voice or image message.

Putting it all together for a definition of a CEM:

1(2)

For the purposes of this Act, a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity, including an electronic message that

(a) offers to purchase, sell, barter or lease a product, goods, a service, land or an interest or right in land;

(b) offers to provide a business, investment or gaming opportunity;

(c) advertises or promotes anything referred to in paragraph (a) or (b); or

(d) promotes a person, including the public image of a person, as being a person who does anything referred to in any of paragraphs (a) to (c), or who intends to do so.

The law also extends the request for consent itself to be a commercial electronic message.

This is vexing for people who are permission-seeking, but makes perfect sense from a consumer standpoint: it closes a loophole of the permission-seeking being the ad. If they didn’t do this, “May we send you messages about CreamerSquirtz (a squeezable creamer container that will revolutionize how you put cream in your coffee, now on sale at your local grocer for $2.99, buy it today!)?” would be viable. Hence:

1(3)

(3) An electronic message that contains a request for consent to send a message described in subsection (2) is also considered to be a commercial electronic message.

CASL regulates all electronic messages, not just email

While “Spam” is right there in the name, it’s not really just about email spam (or text spam). As defined above in 1(1), an electronic message is a message sent by any means of telecommunication.

There’s an implied element of directness in there: a billboard cannot be a CASL violation, for instance. It governs messages send to an “electronic address” (see above):

6 (1) It is prohibited to send or cause or permit to be sent to an electronic address a commercial electronic message unless

(a) the person to whom the message is sent has consented to receiving it, whether the consent is express or implied; and

(b) the message complies with subsection (2).

Any commercial message contaminates a non-commercial message

The content of school newsletters, at least where I work, is almost entirely non-commercial. Upcoming key exam dates, or an announcement that a club is looking for members, or summaries of recent news articles, don’t fall under the definition of a CEM.

But some things on the periphery do qualify, and that’s why understanding contamination is important.

Just like you can’t have a shop that stocks mostly soda pop and just a smidge of toxic waste, and think that’s okay because it’s mostly soda pop, you can’t have a “mostly” non-commercial message with a bit of commercial messaging.

The law is clear: all commercial messages are de facto forbidden. A school e-newsletter that’s 90% announcements but also 10% promoting a clothing sale that kicks back some profits to the school is considered a CEM – the latter contaminates the former, as it’s a commercial message.

There are no exceptions for non-profits or charities

Right back up to 1(1): “…whether or not the person who carries it out does so in the expectation of profit…”. Just because you’re a school – or a church, or a Scout troop, or whatnot – a CEM is a CEM is a CEM.

There is no “private right of action” (i.e. tort/lawsuits)

At one point, the federal government was going to introduce a “private right of action” – i.e. empowering lawsuits – over CASL violations. It was removed before the law finally came into full force, but it’s not impossible to see it being reintroduced.

Consent is implied if a recipient is in an existing business or non-business relationship

This is something I’m still actively poking at, because it feels like the mechanism under which school newsletters might work, but it also feels… tricky.

One of the challenges with CASL implementation – which we’ll see when we get into examining actual cases, especially those resulting in AMPs – is that there just isn’t that much jurisprudence in the “interesting” zones around the fringes of the flagrant examples of unsolicited, no-question-it’s-spam spam. Like many things in law, a Real Lawyer (and I am not one) can confidently say “the law says this” but it’s still ultimately up to the courts to decide how the law is applied when a use case is operating on the fringes.

I feel there’s a strong argument, when you look at s10 (9) and (10), that students at a university are in a business relationship with their school.

Implied consent — section 6
(9) Consent is implied for the purpose of section 6 only if (a) the person who sends the message, the person who causes it to be sent or the person who permits it to be sent has an existing business relationship or an existing non-business relationship with the person to whom it is sent (…)

Definition of existing business relationship
(10) In subsection (9), existing business relationship means a business relationship between the person to whom the message is sent and any of the other persons referred to in that subsection — that is, any person who sent or caused or permitted to be sent the message — arising from
(a) the purchase or lease of a product, goods, a service³, land or an interest or right in land, within the two-year period immediately before the day on which the message was sent, by the person to whom the message is sent from any of those other persons (…)

On its face, it seems clearly arguable that a student is purchasing a service, or really a broad set of services, from a university. Money is exchanged, the student receives instruction and grades and so on.

To date, there hasn’t ever been anything that addresses this or is comfortably adjacent to it. So I personally feel confident that consent is implied when a student is paying a college or university for the services of education (or residence, or gym use, etc.) but it’s… fuzzy. I’ve got a lot of notes for a dive into this topic as its own thing, and hope to get to it.

This interestingly dovetails entirely with another area of active interest for me – the interweaving of FIPPA and PIPEDA on campuses, with for-profit PIPEDA eligible activity nested inside larger FIPPA-regulated structures, but that’s a whole ‘nother thing.

Coming up: actual numbers, 2018-present

Up soon… let’s look at the actual numbers of what CASL has done since it started taking recorded actions. There will be charts.

1
In a nutshell: we use Mailchimp for newsletters, which comes with a baked-in unsubscribe function; we’ve also developed a process to scrape the school database to auto-update student lists so that it periodically “automagically” recalibrates for students who have left, new students who have joined, etc. That in turn would refresh the lists in a way that pushes students who unsubscribe – which they really shouldn’t do in the first place – back into the mailing list, and administrators, appropriately concerned, asked if that was even CASL compliant. Hence (gestures around).
2
W R Lederman, The Nature and Problems of a Bill of Rights, 1959 37-1 Canadian Bar Review 4, 1959 CanLIIDocs 21, <https://canlii.ca/t/t5qk>, retrieved on 2023-05-24
3
emphasis mine

Consent Law LLM Marketing & Communications Photography Privacy Videography

Billy Prosser and the Four Torts of Secrecy

Post author By mattshepherd
Post date May 23, 2021

Quick quiz: who’s not a lawyer? Me! What’s not legal advice? This!

“Billy Prosser and the Four Torts of Secrecy.” Sounds like a YA wizard novel, right? Well, if we’re looking at the history of privacy law, Prosser was kind of a wizard. He took the raw material of the Warren/Brandeis “Right to Privacy” concept and hammered it into shapes that would be more easily and directly applied by law.

(and frankly, isn’t all law wizardry? The application of will and language to shape reality; creating changes in the world through the power of the mind. Also: a lot of robes.)

(and yes, they’re privacy torts, not “secrecy” torts, but the Harry Potter riff doesn’t work nearly as well that way, and this is how I choose to spend my Sunday mornings, so there.)

When Warren and Brandeis kicked off the right to privacy, they summed it all up by essentially saying their big idea would be more likely to live as torts — people suin’ people, for the layperson — than public law (like criminal law). In “The Right to Privacy,” they identify likely remedies as tort in all cases, and, rarely, injunction. They frame criminal law as desirable but unlikely without legislation.

So, following “The Right to Privacy,” the idea just kind of… hangs there, like an indecisive seagull, for decades. It pops up in all sorts of scattered cases, but not particularly cohesively.

Then, boom! 1960! Ben Hur! Green Eggs and Ham! The Flintstones! And William Prosser writes “Privacy” in the California Law Review.¹

This wasn’t Prosser’s first kick at the privacy law can.²

It was an analysis of decades of tort privacy cases, culminating in Prosser drawing four broad categories of privacy-as-tort:

Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.
Public disclosure of embarrassing private facts about the plaintiff.
Publicity which places the plaintiff in a false light in the public eye.
Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.

Let’s bear in mind for a second that this was originally U.S. writing, and while broadly adopted, was adopted chiefly in American courts. But Canadian courts have steadily been drawing on Prosser’s tort categories as well, with the fourth tort being recognized in 2019.³

Taking it back to high ed marcomms, all four are squint-and-you-see-it applicable to photo and video capture and consent.

There’s a bit of awkwardness here in terms of how I’m writing, too. At the moment, I’m moving more or less sequentially through time; some of the tort wrong that Prosser identifies become clearer in terms of their application through future cases.

The most applicable of the four are the first and fourth, on their surface.

1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.

Jones v Tsige is the 300-pound gorilla intruding on seclusion in Canadian courts. Where does a 300-pound gorilla intrude on seclusion? Anywhere it wants. In a nutshell, Tsige abused her access at a bank to spy on the financial records of Jones — who worked at the same bank, and had been partnered with Tsige’s ex.⁴

The big quote is p. 71:

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

Sneaky peeks at people’s bank records are a bit of a leap, in the abstract, from “intrusion upon seclusion” in other areas, but the key point here is that Canadian courts recognize that seclusion is a thing, and you can intrude on it.

Let’s also bear in mind that my overall arc here is unpacking consent issues with a particular interest in “public” spaces (and this gets surprisingly fungible in higher ed settings). At first, it seems like “seclusion and solitude” and “public space” is antithetical… but stay tuned, it’s a more nuanced conversation than you think, and part of a larger philosophical and legal conversation about privacy and context that’s been raging for decades now, and will be covered in upcoming posts.

For now, let’s take it on faith that yes, even if somebody is in a public area, you can still intrude on their seclusion or solitude. And that photographs can be as intrusive as snooping in bank records. I know that might not be satisfying at the moment, but trust me, we’ll get there.

4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.

The last — “appropriation for advantage” is the other clear issue. Again, this is something that seems kind of clear-cut at first. It’s easy to trace this as it pertains to for-profit businesses; if you snap a picture of me without me knowing, and suddenly it’s on billboards coast to coast advertising beer, that’s a no-brainer (and for “false light” as well — what if I’m a known speaker against alcohol? A youth pastor?).⁵

In higher ed, though, we tend to self-identify as the “good guys,” and my feeling is there’s a fuzzy sense that we can get away with more because (a) non-profit, (b) education is good, and (c) kind of a wibbly crossover between the oft-mentioned, oft-discussed fair use (U.S.) fair dealing (Canada) exceptions to copyright kinda sorta making us think that everything a college or university does is fair-dealing-esque.

But… well, no. We might be “good guys,” but we’re not exempt from the same strictures that govern for-profit business when it comes to exploiting images for “advantage”. Note that word — it’s advantage, not gain. The assumption that we’re not making money from something doesn’t move us out of the ‘advantage’ zone. Higher ed is in this very weird space where we’re collegial but also competitive — universities are notionally supposed to all get along and work together, but at the end of the day we’re also out there pitching and brawling to attract the very best students, researchers, research funding, donors… “advantage” starts shading very differently when you think of the various competitive spaces we exist in.

Does this violate copyright? Trademark? Is it passing off? We’ll get to all of these questions in… it’s looking like 2023, based on my current pace of work.

Stepping into more explicit legislative language, in Canadian jurisdictions where violation of privacy is a statutory wrong, it still paints a much broader picture than “profit”. For instance, in B.C.:

[3](2) It is a tort, actionable without proof of damage, for a person to use the name or [likeness, still or moving] of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.⁶“sale of or other trading in, property or services…” I wouldn’t bet the farm on wriggle room here.

“Appropriation” here is a slippery legal construct because there’s a ton of overlap with prior torts — both misappropriation of personality, and “passing off,” which are also their own things. To my limited knowledge, there’s no precedent in Canada for the specific Prosser appropriation tort, as a privacy action, without that gloss into the other areas as well. But my knowledge is admittedly limited.

And — and this is important — to date, misappropriation of personality (the non-privacy-related tort) has generally been advanced by famous people, in pursuit of damages that would equate to royalties received had they granted permission for their likenesses to be used.

To date — to my knowledge — there hasn’t been a “normal citizen” misappropriation case before the courts that’s seen success. A recent case in point is Hategan v. Farber, 2021 ONSC 874 — Hategan, a former member (and self-declared “former female face”) of the Heritage Front⁷ brought suit against Farber, a television host, for appropriation of personality for… essentially, talking about her, it looks like. The judge, in a claim for summary judgment:

Yes there is a tort of wrongful appropriation of personality. This tort is not made out. It is not ever a “close call”.⁸

So there’s clearly a commonly understood sense of what appropriation of personality entails, and to date it’s been a hard threshold to reach. But that doesn’t mean impossible, or impossible forever.

What about the other two?

2. Public disclosure of embarrassing private facts about the plaintiff.

“Public disclosure of embarrassing facts” is less easy to see in higher ed marcomms; first, there’s a strong internal inclination to capture and show positive things, so it’s hard to easily see a marcomms agenda that sets out to disclose anything that somebody might find untoward.

It’s not without precedent in Canada — as Liam O’Reilly details, there have been a few cases of legal reasoning that hinge on this aspect of tort.⁹ A minimal award, but still a finding of this wrong, in Action Auto Leasing and Gallery Inc v Gray. The most significant — Jane Doe 46544 v ND.¹⁰ — really leaned strongly into the tort, but was later set aside, so its value as precedent is gone (although the legal reasoning remains).¹¹

3. Publicity which places the plaintiff in a false light in the public eye.

There was a bit of ballyhoo when this finally hit Canadian judicial decisions as the “last Prosser tort” to be recognized in the country.¹²

In Yenovkian v. Gulian 2019 ONSC 7279, a judge went above and beyond previously established tort awards in finding against a husband who had made wildly inaccurate public claims about a spouse in a custody case. This is one of the introductions of “cyberbullying” into Canadian law, and the judge actually pulls directly from the American Restatement of Torts:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.¹³

So we’ve got the U.S. idea, and even the test, now in Canadian law as precedent.

It’s… challenging to see how this would affect my current point of focus, which is photo/video capture and consent. But it’s interesting that it’s on the books in a broader sense, and may be worthy of note in higher ed in general, considering the sheer volume of social media drama/noise that can be generated during things like, say, student council elections.

The other thing to note is that in a general sense, informed consent solves everything in terms of the above tort categories. Eh, almost everything. And this is where we get into the philosophical foundation versus the practical elements of consent management.

I kind of want to park that for now, because a lot of the case law stuff coming up starts overlapping with the philosophical stuff that’s also coming up. Suffice it to say that there’s a natural tension in consent formulation: the consent-seeker is best served by consent that is broad, general and all-encompassing. But the notion of informed consent is best served by consent that is specific and well-articulated.

This distinction becomes clear when you start thinking of the outcomes of these torts, particularly #3 and #4. Let’s stay mindful of the overall needs of the institution’s marketing and communications mechanisms. A photo taken of a student doing one thing at a particular place and point in time could potentially be re-used for a radically different purpose. I may actually write up an incident from my own career as a case study next week.

This could conceivably trigger various Prosser torts in various ways, unless consent is either amazingly broad at the moment of capture (and consent well tracked), or a lot of effort is put in to re-seek consent for new purposes as they arise.

“No, honey, I can’t help with the dishes, I am busy drawing a mid-20th-century lawyer as a wizard and individually drawing a lot of tiny stars and moons that must all be coloured for my blog.” — future quote raised at a divorce hearing

A final note on Prosser — he definitely moved privacy law from a kind of abstract notion in to something with more form and substance — as we can see above, his American formulation of privacy torts has now made its way completely into Canadian law. But that doesn’t mean Prosser was all that and a tube of Pringles. I’m grateful to Rchards/Solove’s “Prosser’s Privacy Law: A Mixed Legacy” as a great read that identifies some key gaps in Prosser’s proposed formulation, and some inadvertent damage it may have done in the long haul.¹⁴

Next week, a quick case study of how the higher ed marcomms machine can run into trouble when it repurposes photos. After that, we’re going to take a look at some privacy law theory that develops after Prosser, and the growing legal theory that context might be super important (spoiler: it is!).

May 23, 2021

Soundtrack:

Georgia Anne Muldrow: VWETO III

Vegyn: Only Diamonds Cut Diamonds

Murcof: The Alias Sessions

1
William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 388-89 (1960)
2
For a very good overview of the WAB -> Prosser lineage of privacy and torts, and more on pre-’60 Prosser, Richards and Solove’s “Prosser’s Privacy Law: A Mixed Legacy” (California Law Review , December 2010, Vol. 98, No. 6 (December 2010), pp. 1887-1924) is terrific, both as an overview of the evolution of privacy and tort, and a criticism of Prosser’s work and legacy. Working paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693
3
Some coverage here: https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort
4
You can read the case at https://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html
5
A good overview of appropriation at the McCarthy blog, here: https://www.mccarthy.ca/en/insights/blogs/snipits/future-everyone-will-have-their-personality-misappropriated-15-minutes
6
Hie ye to the B.C. Privacy Act – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96373_01
7
let us sit for a moment with the fact that the “former female face” of the Heritage Front was basically named “Hate again,” and marvel
8
Get your law readin’ on at https://www.canlii.org/en/on/onsc/doc/2021/2021onsc874/2021onsc874.html, at 117. Incidentally, this is a great rubbernecking case if you’re into reading court decisions that don’t go at all the way the plaintiff thought they would.
9
I am grateful to Mr. O’Reilly — he’s literally done my homework for me here, including a dive into small claims court cases: https://liamoreilly.ca/2017/07/31/public-disclosure-of-embarrassing-private-facts/
10
Over here at https://www.canlii.org/en/on/onsc/doc/2016/2016onsc541/2016onsc541.html
11
https://www.canlii.org/en/on/onsc/doc/2016/2016onsc4920/2016onsc4920.html — this is a point at which I confess that I’m still a limited scholar in terms of my reading-law ability — there seem to be a number of procedural issues here for the setting-aside, but no actual flaw in the judicial reasoning or application of the tort per se
12
A good summary at Can Tech Law – https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort
13
Yenkovian decision at https://www.canlii.org/en/on/onsc/doc/2019/2019onsc7279/2019onsc7279.html, above quote at 170
14
That link once again: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693

Consent Higher Ed Law LLM Marketing & Communications Photography Privacy Videography

Warren & Brandeis: Photography in Privacy’s DNA

Post author By mattshepherd
Post date May 16, 2021

Hey! It probably goes without saying that I am not a lawyer and nothing in this blog is legal advice. But I’m saying it anyway!

The first thing we read in my privacy law class was “The Right to Privacy,” Samuel D. Warren and Louis D. Brandeis.¹ First published in the Harvard Law Review in 1890, it’s generally accepted as the initial stake in the ground for privacy rights. While there’s a lot that follows in the intervening 130-plus years, it firmly establishes the right to be “let alone,” a phrase made famous again in 1955 by Greta Garbo (and repeated in 50% of law school papers on privacy).*

Here’s “The Right to Privacy”, if you want to read (or re-read) it.

When you read it, the inciting behaviour is clear: gossip, specifically “society columns” in the newspapers of the day. Look at how tightly this article is bound to photography. Taking the introduction of “to be let alone” in the article, photography kicks off the very next sentence (emphasis mine):

Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life…

And we’re off to the races! Thanks to Warren and Brandeis, hereafter WAB, because it’s short and also because it’s a lot like WAP and that’s fun for me.

I’m making a big deal out of this because as a higher ed marketing & communications professional, photos are a very big deal. And this is (broadly speaking, there are antecedents²) — WAB even mention that it had “already found expression in the law of France”³ — the kick-off for the very notion of privacy rights, which are the legal construct that leads to photo/video consent as both a practical and philosophical necessity. We can’t talk about consent without talking about privacy… and we can’t talk about privacy without talking about WAB.

So here we are, discovering that photography is baked right into the history of privacy-as-a-right.

It’s no secret that “The Right to Privacy,” while far-reaching in scope, was inspired by Warren’s profound irritation with what we’d call paparazzi today, who crashed and wrote about a society wedding.⁴ The word “paparazzi” was still 70 years from being coined — eponymous for a character in Fellini’s La Dolce Vita — but clearly photographer-as-pest was enough of a common social ill, even in 1890, to resonate.

Look at this jerk with the punchable face.

It’s fun, if pointless, to wonder whether the idea of a right to privacy would have arisen, and in what form, if photography hadn’t gone the way it had — or if people had left the family wedding alone, or if WAB had thicker skins. Things rolled out the way they did. It’s interesting, though, to look at subsequent developments in privacy law and note how correlated they are with identity and revelation: presentation, photography and video as the drivers of a lot of our notional understanding of privacy.

So what is privacy, as they frame it?

Privacy is a negative right

Right out of the gate: privacy isn’t a right to do something, it’s a right to not have things done to you. WAB: “It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.”

It’s not copyright, libel or slander

WAB go to some pains to ensure that the right to privacy is distinct from existing rights. Copyright is identified as a branch of property law. They do, however, use the idea of privacy law to colour in areas around copyright law. Where copyright law would protect a literary or artistic work, it still doesn’t prohibit the sharing of details or facts about people’s lives. WAB sketch out scenarios of letters between husband and wife, or a catalogue of gems that would be ruinous to a jeweler if released. “If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another’s, the facts relating to his private life, which he has seen fit to keep private.”

Libel and slander are deemed to protect “the material, not the spiritual” (197) — protecting from damage and injury to reputation. The proposed right to privacy, unlike libel / slander / defamation, does not offer the truth as a defense, however.

It’s constrained by practical matters

The authors also set out some fences that mesh with fairly common-sense propositions: once something is published (by consent), it’s no longer private; matters “of public interest” aren’t private (so publishing the backroom dealings of a politician are fair game, for instance). Constrained “privileged” publication, such as in court, government committees, or other public bodies, don’t violate the right to privacy. Oral violations would likely be without redress, because the damage would be very limited.

No malice required

They also take pains to point out that an absence of malice is no defense — that personal ill-will is not a requirement of a violation of the right. This is a through line with tort law — ill intent generally isn’t necessary to be held responsible for intentional acts.

Setting the table for 130+ years of privacy evolution

Warren is the guy who looks like a turtle soup magnate on the left, Brandeis on the right looking like he’d be right at home presiding over an orphanage in a Dickens novel. It’s fun to imagine them popping their monocles over gossip columns — but this was a big idea; important work, that would leave gossip in the dust over the next century-plus and become a foundational concern for society today.

They also weren’t shy about tossing a little hyperbole in the mix:

If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but also against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.

Although privacy law now covers everything from financial data storage to how censuses work, my interests, as somebody who works in higher ed marketing and communications, are still in roughly the same ballpark as WAB. As somebody who is responsible for creating, and publishing, a lot of pictures and videos in a lot of different ways, how can I do that in a way that upholds the spirit of a right to privacy, while still operating effectively and efficiently?

It’s a compelling question, for me, and I’m going to keep diving into it for a while.

Sidebar: so who was Judge Cooley?

Because I get curious about things, I couldn’t help wondering who “Judge Cooley” is. He’s actually the cited author of the four-word “to be let alone” phrase that anchors this whole thing. It’s like if I wrote a long essay saying that somebody should, as the Fonz says, “sit on it”, and I become known as the genius who first established that somebody should sit on it. I should hope that future scholars would one day work to uncover this mysterious “Fonz” from who these words of wisdom came.**

Cooley (Thomas M.) seats the right “to be let alone” in a general treatise on torts from 1879; in Chapter II of A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract, “General Classification of Legal Rights,” he lists “Security in person” as one of the rights that a government is expected to recognize.

In that vein, and following “Right to Life,’“ “Personal Immunity” is the second right he lists; and here’s where we get to it (emphasis mine):

“The right to one’s person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such proximity as might render it successful, to attempt the infliction of an injury. In this particular the duty goes beyond what is required in most cases; for usually an unexecuted purpose or an unsuccessful attempt is not noticed. But the attempt to commit a battery involves many elements of injury not always present in breaches of duty; it involves usually an insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance. There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed in this case the law goes still further and makes the attempted blow a criminal offense also…”⁵

This is actually pretty interesting. Cooley is engaging in a pretty straightforward description of assault and battery. (Fun fact: in Canadian law, there is no “battery” in the Criminal Code — “assault causing bodily harm” carries the weight there. But “assault” and “battery” are still torts; as you can infer from the criminal distinction, “battery” is the physical harm portion, and “assault” is the menace. If I run up to you with an axe, screaming, and swing the axe but stop it an inch shy of your face — that’s still assault, even if no physical harm is done. It’s actually a pretty broad category of things (including throwing a cat!).⁶

So, in A Treatise on Torts, Judge Cooley is describing “a right of complete immunity: to be let alone” in the context of the legal wrong of assault.

WAB have picked up Cooley’s turn of phrase originally used to describe assault — inflicting credible menace on somebody — and turned it to the purposes of privacy.

This is not an accident — they even describe the evolution of assault from battery on the previous page. Judge Cooley and A Treatise on Torts would have been a seminal book by 1890. So it’s fair to say that WAB knew exactly what they were doing with the lift, knowing that their audience would also likely be familiar with Cooley: invading my privacy is a form of assault.

Also worthy of note — significant mainly in one of the exceptions — consent is also part of the DNA of this first stake in the ground. It comes up a few times in the document, particularly as one of the limitations of the proposed right. Interestingly, the paper’s longest footnote concerns consent via copyright, contract and photo reproductions, substantially quoting North J in Pollard v Photographic Co. on contracted use of negatives.

And — also worthy of note — is the fact that on their surface, WAB, through one lens, failed. If they were writing in the hope of stopping the dissemination of society gossip, a quick trip to a supermarket checkout counter — or any news website — will show that society gossip, evolved into celebrity gossip, is far from gone. The seeds of contemporary gossip-mongering are captured in their very own exception to the idea of a right to privacy: “The right to privacy does not prohibit any publication of matter which is of public or general interest.” This is a massive and swampy grey area, that we’ll get into with century-later court cases involving supermodels and princesses. Stay tuned! But if their goal was to shut down the gossip industry and ensure that the private lives of the rich and famous could not be touched by the grubby, ink-stained fingers of those filthy journos… this was far from an unqualified success.

So let’s keep the following in mind as we meander through the evolution of privacy as a notional right, with a particular interest in privacy in public…

Photography is comingled with the genesis of a legal right to privacy
As is consent (but as a factor that waives privacy rights)
The authors lifted language used to describe assault to define this right to privacy

Next week: Prosser, and the next big hop forward in conceptualizing privacy… for good, and for ill.

*In one of pop culture’s more famous misquotes, she was frequently reported as saying “I want to be alone,” which she clarified in a 1955 interview as having actually said “I want to be let alone.” If you don’t grok the distinction, read on!

**It turns out that the Fonz didn’t actually say “sit on it” very often — it was more commonly said by Joanie and Mrs. Cunningham. Ayyyyyyy!

May 16, 2021

Soundtrack:

Phil Collins, No Jacket Required

Buddy Rich & Max Roach, Rich vs Roach

Sleater-Kinney, All Hands on the Bad One

1
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
2
I highly recommend Solov’s “A Brief History of Information Privacy Law” — Solove is going to come up a lot in this series, I think, including next week when we look at Prosser. Daniel J. Solove, A Brief History of Information Privacy Law in PROSKAUER ON PRIVACY, PLI (2006).
3
WAB’s footnote mentions the Loi Relative a la Presse of 1868, which is very elusive to find, or find writings on; if you are or know a French historical legal scholar, maybe you’d have better luck than I tracking this down
4
Prosser, W. (1960). Privacy. California Law Review, 48(3), 383-423. doi:10.2307/3478805
5
Cooley, Thomas M. A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract. Chicago: Callaghan and Company, 1879; pages 23, 29.
6
He doesn’t cite the case here, but if a lawyer is going to say that throwing a cat is assault, I’m not going to miss this opportunity to write about it. John Erikson, “What are the different types of assault charges in Canada?” at https://ericksonlaw.ca/different-types-assault-charges-canada/

Consent Higher Ed Law LLM Photography Privacy Videography

Set Sail: for Law Island!

Post author By mattshepherd
Post date May 9, 2021

Law ho!

If you noticed that last week was a week off, it’s because I’ve been thinking about what I’m doing here.

Not in a bad way; just in a “what are my goals, and how is this helping me achieve them” mode. I’ve been writing in this space about higher ed marcomms for a while, and kind of hopping around based on what is on my mind on any given week.

Magpie mind! It’s come up in this space before. It’s the classic “blessing and a curse” — lots of fun to have, and you do all sorts of neat stuff, have lots of hobbies, learn tons of things. But you tend not to get anywhere, or at least not as fast, because the gritty monomania that makes people succeed is lacking.

I’ve been mulling this over for a while, and in a way the decision’s been made at least partially for me: I’ve been chosen (by vote! That’s flattering) to give a talk at #PSEWEB, a post-secondary higher education marcomms conference, this July. The subject is privacy, consent and image capture — my major paper subject last term, and something I’m very interested in pursuing.

So I need to prepare for that, and that seems like a solid reason to lean in a law-ward direction in this space, and talk more frequently and explicitly about the LLM.

This makes me nervous for two reasons:

First, I think I might be on the wrong side of the Dunning-Kruger effect* on this one: one semester of privacy law studies does not an expert make, nor a research paper on privacy and consent, even if you put a lot of work into it. I’m excited about the topic because it’s exciting to me, so I plunged hard into it in Q4 of 2020, but law is big and weird and excruciatingly niched. There’s more I don’t know than do know, and I’m not keen on putting bad information into the world because I don’t know what I don’t know.

Uncharted waters! Where I may well sink.

Second, I have no idea if this is interesting to literally anybody else. Quite a bit of this space has been dedicated to ideas that I think have some utility — an explanation of social media algorithms for the uninitiated, a novel acronym for triaging content decisions, a chart that maps out components of market research results. This will be a bit more of a dig-down. That said, this is a young project, so it’s a really good time to do this — it’s not like I’m risking a legion of followers, or making a living from this. There’s no real consequence to indulging myself.

So from now til July, you can expect to see a lot more privacy law — both theory and case law — in this space, focusing on Canada (because that’s where I am), along with some approaches to consent and consent management.

Law Island is ruled over by a giant set of poorly drawn scales. It is actually adjacent to Skull Island, and if he ever learns to swim we can look forward to the adventures of Judge Kong, who is like Judge Judy but much larger and less sassy.

Are you excited? It doesn’t matter! Because I’m excited! And I’m doin’ this thing! Pow!

Jotting down some ideas for the coming weeks:

The origin of privacy law as a response to evolving photograph technology
The evolution of context as a key factor in privacy
Privacy in public: UK and European court precedents
Privacy in public: evolution of legal thought
Case law: Aubry v Éditions Vice-Versa Inc and its impact in Canada
Case law: recent small claims courses and context versus public photography
Journalism exceptions and how they apply in higher ed
Consent-seeking scenarios and approaches
Explicit vs. implicit consent (mapped as “active” and “passive” methods
“Informed” consent and reasonable personhood
Contemporary writing on consent and privacy in public
How to attach consent to digital files — experiments, successes, failures
Contracting for consent: how to assure compliance when hiring photographers and videographers

As you can see, there’s a lot of stuff going on in this space. I’m getting pretty jazzed up just looking at the above list; it’s something I’ve found myself very passionate about and am looking forward to unpacking. I hope y’all are too!

*Looking it up, I see it’s under some question, so maybe it’s more a metaphor than a real thing at this point. The chief issue seems to be that people who cite the Dunning-Kruger effect don’t really know that much about the Dunning-Kruger effect’s subtleties and lean too hard into the “idiots with a bit of knowledge think they know everything” concept. So the problem with people citing the Dunning-Kruger effect is they don’t really know that much about it, but think… they know… hang on…

May 9, 2021

Soundtrack:

Hopeton Lewis – Take It Easy With The Rock Steady Beat

India Jordan – Watch Out!

Angel Olsen – All Mirrors