Beware the right to privacy


Dean Jobb

The remarkable series of articles in The Globe and Mail drew readers into the gritty, minimum-wage world of Toronto’s working poor.

Reporter Jan Wong went undercover for a month in 2006 to work as a maid for a cleaning service, a job that opened doors to the homes of the service’s clients – and to details of their personal lives.

But this access, gained using her real name but without revealing she was working as a journalist, has sparked a lawsuit that threatens to strengthen Canada’s privacy laws and create new risks for those who impersonate others in pursuit of a story.

A Toronto couple and their young son are suing Wong, the Globe and the maid service for $50,000 in damages over an article in which Wong described cleaning their “monster home.” Among other details, she recounted how she “recoiled” at the sight of a soiled child’s bathroom and resented having to iron oversized clothes. The number of “useless” pillows on a bed was cited as evidence of “21st-century conspicuous consumption.”

The homeowners were not identified by name. But their suburb was, and the lawsuit claims “various persons known to them” recognized the family from Wong’s description of the home and belongings. As a result, family members claim they suffered “significant embarrassment and mental distress” as well as harm to their dignity and “personal and home security.”

A claim against the media for compensation for embarrassment, mental distress and loss of dignity is usually rolled out as a libel suit. But the family is not suing for defamation. Instead, the action alleges Wong and the newspaper damaged their reputation through “deceit” and “invasion of property.”

This summer the Globe asked a judge of Ontario’s Superior Court of Justice to dismiss the action. The claims were being used to “dress up” what was essentially a defamation action, argued Globe lawyer Peter Jacobson. Since the family had missed the three-month deadline for filing a libel suit, the claim should be dismissed.

But the family’s lawyer, Sam Hill, asserted his clients suffered distress and damage from Wong’s intrusion into their lives, and not solely from the ensuing publicity.

In ruling on the motion in September, Justice David Aston said it is not easy to dismiss an action before trial. “If the claim as pleaded has some chance of success, it must be permitted to proceed.” But Canada’s courts, he noted, “have been reluctant to recognize” a distinct right to privacy under the common law – the body of law that flows from judges’ ruling.

So have lawmakers. As of 2005, four provinces – British Columbia, Saskatchewan, Manitoba and Newfoundland and Labrador – had laws on the books to protect citizens against unwarranted invasion of personal privacy. The strongest prohibitions are in Quebec, where the province’s Civil Code and Charter of Human Rights and Freedoms shield the private lives of individuals.

These laws protect against eavesdropping, the publicizing of diaries and other personal papers without consent, and the unauthorized use of someone’s name or image to promote a product. As a rule, a journalist’s legitimate efforts to gather information for news stories are exempt from such laws.

Then along comes the Globe lawsuit, which has the potential to set a common-law precedent in Ontario and, if it makes it to the Supreme Court of Canada, for all of Canada.

The occupants of the home Wong described, Justice Aston ruled, had a right to claim compensation for damages not directly linked to publication of the article. “The law of libel and slander,” he wrote, “should not act to bludgeon other meritorious causes of action where they can stand on their own.”

Nor was the judge prepared to dismiss the action without convening a trial to review the evidence and decide whether the Charter of Rights and Freedoms protects privacy as well as the media’s right to gather news.

“Charter values will take into account the privacy interests of the plaintiffs, but also the ability of investigative journalists to play their role in a free and democratic society,” the judge concluded. “Where to draw the lines when Charter values butt up against one another ought to be decided after a full hearing, not in motions court.”

The family’s lawyer, Sam Hill, claimed victory and warned that “journalists and powerful media companies can’t invade someone’s home under false pretenses and put their private lives on display to sell newspapers.” The Globe must pay the family $9,160 toward the cost of fighting the motion to dismiss the suit.

The right to sue, of course, is no guarantee the claim will succeed. The Charter right to press freedom will be a powerful weapon for the Globe at trial.

But journalists should draw some lessons from all this: Look for other ways to tell the story before resorting to impersonation; tell as few lies as possible; and guard against describing people and places in so much detail that identities become obvious, even when no names are used.

The courts are increasingly putting journalists’ motives, actions and methods under the microscope. The new libel defence of responsible journalism – which protects important news reports that were properly investigated, even if some facts turn out to be false – is an example of how the law is increasingly concerned with how journalists do their jobs.

No matter who wins this battle, don’t expect the courts to recognize an unlimited right for journalists to probe the private lives of individuals – particularly people who are not newsmakers or otherwise in the public eye. A line will be drawn.

Dean Jobb, an assistant professor of journalism at the University of King’s College in Halifax, is author of Media Law for Canadian Journalists.