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Public space precedent

Editorial Obiter

The finding in a recent Ontario Superior Court of Justice Small Claims Court case, Vanderveen v. Waterbridge Media Inc., is worthy of note.

The amount awarded to the plaintiff, Basia Vanderveen, was only $4,000 for breach of privacy and $100 for the appropriation of personality.

However, the case is worthy of review due to an issue that will only become more prevalent in a world where the vast majority of people have a camera on their phone and can capture footage of people they encounter in public. The law is often criticized for evolving slowly, but the award signals a change in the way privacy and public space can be interpreted. In this case, Vanderveen’s case for breach of privacy rested on the argument that she had not given her consent when footage of her jogging was used for a promotional video for a real estate developer, Bridgeport.

“There existed no legal justification for taking her image or filming her running,” said Justice Roger Leclaire in the ruling. “I find that a reasonable person . . . would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her.”

Leclaire has even sharper words when images are used for commercial purposes, rejecting evidence that it was “impractical” to get consent from those photographed due to the small number who would appear in the final product.

“In my view the important right to privacy prevails over any non-public interest, commercially motivated and deliberately invasive activity,” says the ruling. 

In a world where digital content is exploding, those who create that content — and those that represent them — would be wise to mind Leclaire’s words.            

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