Monday, March 21, 2022

Video: Privacy laws and the media (Part 1)

Today, I’m going to be talking about privacy rights and freedom of expression in Canada. Specifically, I’m going to be talking about privacy and news reporting.

This is a pretty big topic that could fill an entire course at both law school and journalism school, but I’m hoping to provide an overview of the significant laws and principles at play.


Most of us would be familiar with the idea of freedom of expression or freedom of the press.

In Canada, it is guaranteed in section 2(b) of our Charter of Rights and Freedoms under the heading of “Fundamental Freedoms”.

This section reads:

“Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;”

In Canada, we regularly talk about freedom of expression, which is guaranteed to everyone. It does include “freedom of the press.”

Charter s. 1

In understanding how section 2(b) works, we also have to understand that it is not absolute. The freedom of expression guarantee is subject to section 1 of the Charter, which allows some limitations on Charter guaranteed rights.

Section one says:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Let’s break that down. Charter guaranteed rights can be subject only to “reasonable limits”, that are “prescribed by law” that have to be demonstrably justified in a free and democratic society.

It is always up to the government to justify these limitations.

It is important to note that freedom of expression not only includes the right to express oneself, but the courts have found that it includes a right to receive information. Limiting a journalist’s right to report on something also limits the public’s right to receive that reporting.

The Oakes test

The Supreme Court of Canada has given us the test for how to determine if an infringement of a Charter right can be justified under section 1. This is called the Oakes test, from a 1986 decision of the Supreme Court.

This also could be its own law school course, but in summary here it is:

First the limitation has to be “prescribed by law”. That’s right from section one. It can be a federal or provincial statute. It can be a regulation or a by-law. But it can’t be a whim of a state actor. It has to be rooted in the law. In some cases, the law could be so vague that it does not qualify as prescribed by law.

Second, the objective of the law has to be pressing and substantial. The courts will not permit Charter rights to be infringed for trivial objectives, so the law has to be for an important purpose.

Third, the impact on the Charter right has to be proportional. This has three parts:

The means chosen by the legislature to address these objectives must be rationally connected to the objective.

In doing so, the measures need to minimally intrude on the impairment of the rights at issue.

Finally, there must be proportionality between the infringement and objective. This is a final balancing step.

In order for an infringement of a Charter right to be justified, the government has to satisfy all parts of this test. If it fails one part, its justification fails.

The Common law

The Oakes test is only used for limitations that are prescribed by law, and something different is done for the common law. The common law is that substantial portion of our laws that are judge made and a bit more fluid.

Many of the privacy claims that I’ll be talking about are “common law”, including “intrusion upon seclusion” and “public disclosure of private facts”. These aren’t subject, strictly speaking, to the Charter.

The Charter limits what governments can do, how our parliament can legislate. The Common law isn’t generally a government imposing limits on what people can do, but most usually regulate what legal claims one person can have against another.

But the Supreme Court has said that the Common law needs to evolve in line with Charter principles and Charter values. For example, in a 2009 case called Grant v Torstar, the Supreme Court of Canada said that the common law of defamation needed to include a defence of “responsible communication on a matter of public interest” to take into account freedom of expression.

The protection of reputation was an important value that had to be balanced against the important right of freedom of expression.

Privacy statutes

So, is the press subject to privacy statutes like the federal Personal Information Protection and Electronic Documents Act or the BC and Alberta Personal Information Protection Acts?

Generally speaking, when engaged in journalism, they are not subject to these laws.

To do otherwise would be unworkable: journalists would have to get consent from politicians before reporting about them, whether it is favourable or critical. That would be a significant intrusion into freedom of expression.

As a result, all three of these laws specifically exclude all collection, use and disclosure that is exclusively for journalistic purposes.

Here is what PIPEDA says…

4(2) This Part does not apply to …
(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.

Alberta PIPA

Here is what Alberta’s PIPA says …

4(3) This Act does not apply to the following: …
the collection, use or disclosure of personal information, other than personal employee information that is collected, used or disclosed pursuant to section 15, 18 or 21, if the collection, use or disclosure, as the case may be, is for journalistic purposes and for no other purpose;

Common law claims

But journalists are subject to the common law, like defamation, and could be subject to common law privacy claims.

I am not aware of any cases where a journalist has been sued for “intrusion upon seclusion” or “public disclosure of embarrassing private facts” in Canada. If one were to be sued, the Court would have to take into account freedom of expression.

Public disclosure of private facts

This tort says that one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.

Note it includes the “not of legitimate concern to the public.” So a lack of public interest is an important element of the tort, and proving public interest would overturn the claim.

Intrusion upon seclusion

In this tort, a person can sue another for an intentional (or reckless) intrusion into the private affairs of another without lawful justification, and that intrusion must be highly offensive to a reasonable person, causing distress, humiliation or anguish.

This tort was introduced into Canada in 2012 from the United States, and may be subject to some refining. It may well be that a court would have to read in the public interest factors that exist in the public disclosure tort in order to be consistent with the freedom of expression right in a case involving legitimate news reporting. Freedom of expression also includes the information gathering stage of reporting.

(You may have noticed that “public interest” came up in my discussion of the defamation defence created in Grant v Torstar and also in the public disclosure tort. Public interest in reporting is important.)

Privacy Act (BC)

Some provinces, like British Columbia, have statutory torts of invasion of privacy. They also use “public interest” to provide a defence. Here’s the wording from BC:

1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

Which could include news reporting.

(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

This last part would very likely take into account whether the intrusion were done by a journalist pursuing a story in the public interest.

The statute also specifically includes a defence for “Publications in the public interest or comment on a matter of public interest”.

But it is notable that this only extends to the publication, and not the collection of information leading to the publication.


We also have criminal laws that are designed to protect privacy.

For example, we have a wiretapping law that makes it an offence to intercept a private communications. It does not include a public interest defence and I suppose it could be challenged if a reporter was engaged in wiretapping or eavesdropping as part of a story.

But just because it could be challenged, doesn’t mean it would necessarily be successful. It may well be that a court would say that any restriction on freedom of expression is justified, and everyone’s interest in being free from having their conversations overheard or phones tapped outweighs any impact on freedom of expression.


We also have an offence of voyeurism, which includes a specific “public good” defence, which reads:

“(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.”

It is hard to imagine a hypothetical scenario where a member of the press may be engaged in voyeurism and to use the public good defence, but it is there. And the legitimate information of the public on a matter of public interest would arguably be for the public good.


In Canada, freedom of expression and freedom of the press are important values. They are rights that are baked into our constitution and all laws in Canada that affect expression or the ability of the media to do their jobs have to be justified.

This includes privacy laws, which may be engaged every time a reporter is looking into the private affairs or the private life of a subject.

Thankfully, to take account of freedom of the press, journalists and journalistic purposes are specifically excluded from the application of our general privacy laws, which require individual consent for all collection, use and disclosure of personal information.

So what we’re left with are the general rules in the common law and statutes that regulate very problematic intrusions into privacy. On one hand, we have the general common law and statutes related to invasions of privacy. While they haven’t been tested in the context of journalism, they do take freedom of the press into account.

Similarly, we have laws that criminalize wiretapping and voyeurism, which could be subject to challenge related to possible impacts on freedom of the press, but these guardrails are likely justifiable under section 1 of our Charter.

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