This is part one of a multi-part series reviewing Canada’s Anti-Spam Legislation in practice since its introduction in 2014 and the beginnings of full enforcement in 2017. Crosslinks will be added as new parts go up.
CASL has been a subject of professional and personal interest to me for some time. I began working in higher ed marketing at around the same time as the legislation was introduced, and well in the groove when it came into full force. It made pretty much everyone in marketing — whether they were in for-profit, not-for-profit or charitable work — pretty anxious.
Almost 10 years later, it feels like a good time to see how it’s all playing out. I’ve been working on this at a fairly relaxed pace, so it’s conceivable that I might wrap this up for its 10th anniversary at this point.
Even as somebody who was passingly familiar with CASL for professional reasons going into this, I rapidly ran into a pretty fair-sized lexicon of terms and acronyms. Before we get into the meat of it, let’s get some acronyms and terms out of the way.
CASL: Canada’s Anti-Spam Legislation. The subject of these short essays. It was introduced in 2014, with a “transitional period” to July 1, 2017, when it came into full force.
CEM: Commercial electronic messages. Pretty much any electronic message (text, email) that promotes a product or service, with some clearly defined exceptions. We’ll unpack this more in the next post.
Investigative powers: Commission staff, who are persons designated by the Commission to conduct investigations, may use the following powers to investigate possible violations under CASL. These presumably lead to actions (see below).
Notice to Produce (NTP) – a notice served on a person requiring them to produce data, information or documents in their possession or control (additional information is available in section 17 of CASL);
Preservation Demand – a demand served on a telecommunications service provider requiring it to preserve transmission data in that is in or comes into its possession or control (additional information is available in section 15 of CASL); and
Search Warrant – a judicially pre-authorized warrant that authorizes designated persons to enter a place (business or dwelling-house) to examine, copy or remove documents or things (additional information is available in section 19 of CASL). 2Verbatim from the CASL FAQ at https://crtc.gc.ca/eng/com500/faq500.htm/
Action types: measures that CASL / the CRTC uses to reinforce compliance with CASL (as well as Unsolicited Telecommunications Rules (UTR) and the Voter Contract Registry (VTR)). Particularly pertinent for CASL:
Citation: a letter outlining alleged violations and an “opportunity to clarify”. Other than publishing the citation 30 days after issuance (absent a valid defence), there don’t seem to be any follow-on penalties to a citation. There’s only been one citation in CASL history to date (Orange Link Inc., details not available online).
Notice of Violation: sets out alleged violations, and may include an AMP (see below).
Compliance and Enforcement Decision (“Decision”): official decisions following the review of a Notice of Violation, Notice to Produce or Preservation Demand.
Undertaking: an agreement between a violating entity and Commission staff defining compliance obligations; can also include a payment amount.
AMP: Administrative Monetary Penalty. These are part of a Notice of Violation; a civil penalty imposed by a regulator. They can be appealed to the commission – this gets important later.
In the next post, we’ll start looking more at the early days of CASL, its remit governing Commercial Electronic Messages (CEMs), and what exactly CASL is, and is not, meant to enforce. It wasn’t quite what I always assumed it was; this might be true for you as well.
As seen on Twitter, and then reported on, they used a photo of a Black person without their consent as part of a campaign for their “Charter for Change” marketing program. Not great — and compounding the mistake, it was a photo of Hadiya Roderique, a well known Black lawyer (not currently practising, but a JD is a powerful thing) and activist championing marginalized voices.
She called them out on Twitter, they replied, acknowledged the error, and removed the photo. Which seems to have satisfied Roderique, per the CBC article, although she’s hoping for the Bay to make a financial contribution to a Black or Indigenous organization (although that seems to more or less be the goal of the Charter for Change program in the first place).
What went wrong?
The cascade here is pretty much what I guessed when it broke. Extrapolating some probable steps, based on my own past in agency work for national/multinational clients: an agency grabbed photos online as part of a pitch, probably one among a batch of concepts they were presenting. Pitch was approved, and somebody went ahead with the pitch concept without doing the due diligence of talking to the original creative team to make sure the right permissions were in place.
And here we are. The Bay has apologized, the photos are taken down, more attention has been brought to the issues of using marginalized peoples’ work without credit or compensation.
But what would Roderique’s options have been had the Bay been obstinate about the whole thing? Or if she decided that the Bay’s takedown and apology wasn’t good enough, and wanted to see how far she could push the issue in the courts?
Never a bad time to mention: I am not a lawyer, and this is not legal advice.
Banjo/lyrics me, vocals Greenish, and video from Donghu Jung, Madison Inouye, Sora Shimazaki (Pexels) and Stefania Buzatu (Pixabay)
This is a situation where the PR and public shame levers were the best ones to pull — because however you choose to push this to the courts, it’s unlikely that there would have been financial penalties to The Bay that would affect it in a meaningful way.
The copyright angle:
First, there’s the question of using the photo as a creative work without permissions. As Roderique establishes in the Twitter thread, it seems like the copyright is held by another photographer, and not Roderique or the Globe and Mail (where the photo first appeared); likely it was taken by the photographer and licensed to the paper.
Assuming my read of Roderique’s presentation of the photo copyright in the Twitter thread is correct, Roderique herself has no claim here: while she’s the subject of the photo, the right in the artistic work resides with the creator (photographer).
If the copyright holder — assuming photographer, and not the Globe — pursued this, awards for this kind of violation have been historically fairly low; generally about what the photographer would normally charge to license a photo, or an industry-standard amount; figure around $5,000. 1See Chung v Brandy Melville, with the caveat that this is also a case from Quebec’s civil system, albeit one that draws on the federal Copyright Act Amounts that I wouldn’t want to pay for a candy bar, but not exactly bringing a department store chain to its knees.
Personality rights:
This is where Roderique herself could look at actions. Publicity / personality rights aren’t that well established in Canada. Where they have been taken to court in the past, it’s usually been in the context of a public figure, such as Bob Krouse or the estate of Glenn Gould, pursuing claims (and — worthy of mention — neither succeeded). Roderique herself is not an unknown person in Canada, but it would be tenuous to say that she has the kind of fame that would make The Bay’s use of her photo qualify as “passing off” — using her name/image as an implicit endorsement of their program based on general recognition of who she is.
BC, Manitoba, Newfoundland and Saskatchewan all have provincial acts that forbid the use of one’s likeness without permission in advertising, but that doesn’t exist in Ontario, and isn’t captured in federal legislation. Since Roderique is in Ontario, and (likely) The Bay is headquartered in Ontario, there probably isn’t much there.2It’s worth noting that at least at the small claims level, a court has recognized appropriation of personality and awarded a nominal amount — $100 — in Vanderveen v Waterbridge Media. So from a precedent perspective, it’s in the books, so to speak.
Success is less assured here. Working through a set of factors defined by Amy Conroy of the University of Ottawa in 20123Amy Conroy, “Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?”, Western Journal of Legal Studies, Vol. 1 Issue 1, there are a number of escape hatches for The Bay: Roderique’s relative lack of fame (while she’s well known in some circles, she’s not a public figure to the point that you can immediately profit from her notoriety and likeness), the fact that this is to support a charitable endeavour by The Bay and not direct profit for the company (there’s an argument that can be made here about the marketing/PR value of the campaign for the company’s bottom line, but the campaign is ostensibly about them giving money to charities to support marginalized peoples).
PIPEDA and the OPC:
This is pretty tenuous, but arguably — as Roderique is recognizable in the photo — it constitutes a ‘record’ per PIPEDA’s definitions. You could conceivably pursue a claim with the Office of the Privacy Commissioner about the unauthorized exposure of this record as a privacy violation per PIPEDA.
There, however, the chain of actions in a complaint filing literally makes “Give the organization a chance to address your concern” the second step in the process.4“File a complaint about a business,” Office of the Privacy Commissioner of Canada When this was brought to their attention The Bay apologized and struck the image both online and in stores, which historically has been seen as a satisfactory resolution for the OPC.
Public Relations vs. Public Relations
It doesn’t take a genius to work out what’s been happening in The Bay’s boardrooms: somebody at some point realized that having a company whose entire history stems from the Colonial exploitation of Indigenous trappers might be problematic. Whether you take a cynical or positive view of this whole “let’s re-invent this whole Charter business” in a direction that drives money to marginalized groups, it’s fundamentally all about addressing that Hudson-sized skeleton in The Bay’s closet.
So calling them out — loudly and publicly — on how they’re building this make-good campaign on the backs of underrepresented people, and exploiting their images to make up for a history of exploitation — a sound, savvy move.
PR damage is the worst damage in this scenario. Quietly pursuing them on legally protected grounds would not be fruitless — if you have time and energy, you’d be putting them in a position where they’d be sinking tens of thousands of dollars in executive time and legal costs to mount a defense that they might lose.
The odds of doing significant financial damage to The Bay are minimal, but drawing public attention to this as a major PR misstep has been a success. Whether you’re taking a sincere or cynical view of The Bay’s “charter re-invention” project, drawing attention to the irony here was an entirely appropriate thing to do.
Would they have reacted with the same speed if it were not a notable Black woman with a law degree and a significant Twitter following? There’s no A/B test for the universe, so again, it falls to whether you’re taking a sincere or cynical view of the campaign’s genesis, management, and intentions.
1
See Chung v Brandy Melville, with the caveat that this is also a case from Quebec’s civil system, albeit one that draws on the federal Copyright Act
2
It’s worth noting that at least at the small claims level, a court has recognized appropriation of personality and awarded a nominal amount — $100 — in Vanderveen v Waterbridge Media. So from a precedent perspective, it’s in the books, so to speak.
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.1William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 388-89 (1960)
This wasn’t Prosser’s first kick at the privacy law can.2For 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
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 Some coverage here: https://www.cantechlaw.ca/news/ontario-court-adopts-false-light-publicity-privacy-tort
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.4You can read the case at https://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html
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?).5A 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
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.6Hie ye to the B.C. Privacy Act – https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96373_01“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 Front7let us sit for a moment with the fact that the “former female face” of the Heritage Front was basically named “Hate again,” and marvel 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”.8Get 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.
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.9I 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/ 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.10Over here at https://www.canlii.org/en/on/onsc/doc/2016/2016onsc541/2016onsc541.html — really leaned strongly into the tort, but was later set aside, so its value as precedent is gone (although the legal reasoning remains).11https://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
3. Publicity which places the plaintiff in a false light in the public eye.
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
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, almosteverything. 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.14That link once again: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567693
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!).
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
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
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
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.1Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). 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).*
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 antecedents2I 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).) — WAB even mention that it had “already found expression in the law of France”3WAB’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 — 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.4Prosser, W. (1960). Privacy. California Law Review,48(3), 383-423. doi:10.2307/3478805 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…”5Cooley, 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.
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!).6He 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/
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!
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/
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.
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…
