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In privacy invasion torts, the act of privacy invasion needs to be carried out in a place where the victim has a reasonable expectation of privacy, and it's often said by people that privacy invasion by someone outside one's house would always be a violation of law. Is this true ?

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    Can you give an example? "privacy invasion" is a bit vague. It's certainly not a crime to look at your house from the street, even if you don't have any curtains.
    – PMF
    Apr 12, 2023 at 11:51
  • By no reasonable expectation of privacy, are you looking for cases whereby the homeowner themselves actively negated their claim to this expectation (e.g. mounting cameras themselves and knowingly broadcasting what happens to the public), or cases whereby the expectation is not considered reasonable (or no expectation is assumed to exist) without the homeowner necessarily having actively and intentionally chosen to make it so?
    – Flater
    Apr 13, 2023 at 3:38

2 Answers 2

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The assessment of a reasonable expectation of privacy is based on the totality of the circumstances. This applies in both the context of unreasonable searches and in the context of the tort of invasion of privacy. See generally: Heckert v. 5470 Investments Ltd., 2008 BCSC 1298 at para. 81-82 (a lower court decision, but summarizing Canada Supreme Court jurisprudence). One might have a reasonable expectation of privacy at a restaurant and one might not have a reasonable expectation of privacy in a personal residence.

When an insurance company was conducting surveillance from the street into a home via open windows, it was found in those circumstances that the privacy interest was low:

Although her expectation of privacy may legitimately be higher while in her house, on the night in question the blinds were open and the lights were on. Therefore, anyone could have seen her helping her daughter while just passing by the house. Further, Ms. Milner ought to have reasonably known that Manulife was investigating her claim and that it was possible that video surveillance would be used. Thus, her entitlement to privacy on the evening in question was low.

Milner v Manufacturers Life Insurance Company, 2005 BCSC 1661 (CanLII), at para 83, https://canlii.ca/t/1m4qx#par83, retrieved on 2023-04-12

On the other hand, when a neighbor installed cameras angled so as to capture surveillance of the interior of another neighbor's home, the surveilled neighbor had a high privacy interest:

the Halls ... did, at all times, have a reasonable expectation of privacy when inside their own home. Unlike, the investigator in the Milner case, the dispute with Mr. Wasserman did not entitle him to any information that might be obtained as a result of surveillance of activities inside the Hall residence. Accordingly, the Halls’ expectation of privacy inside their home was very high throughout the entirety of the dispute.

Wasserman v. Hall, 2009 BCSC 1318 (CanLII), at para 77, https://canlii.ca/t/25tgf#par77, retrieved on 2023-04-12

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There are two related principles at play: droit à l’image (right to image) et droit au respect de la vie privée (right to privacy). The former refers to the distribution of someone's image against their wish, whereas the latter refers to intruding in private matters.

The difference is illustrated by Cour de Cassation, Chambre civile 2, du 10 mars 2004, 01-15.322. A tabloid published pictures of two celebrities showing public displays of affection toward each other, one of them sued. The court ruled that the right to privacy was not infringed because the images were taken in a public place; however, the right to image was infringed.

Focusing on the right to privacy, the statutory basis in civil law is Code Civil, article 9:

Chacun a droit au respect de sa vie privée.

One is entitled to the respect of one’s private life.

That is rather short on details. Case law established that basically anything nonpublic is subject to privacy.

Consider for instance Cour de cassation, civile, Chambre sociale, 7 novembre 2018, 17-16.799. An employer was contesting some employees' eligibility for positions of "employee representative". During the legal proceedings, the employer produced pay slips of those employees. Those pay slips included private information (age, wage, address, bank account number, days of sick leave) that were not needed to establish the facts in dispute, and were communicated to other parties to the proceedings (unions that contested the employer’s determination of eligibility). The employer was condemned for infringing the privacy of those employees, because that information could have been blacked-out before sending the documents. Note that there is no question that the employer lawfully collected that information (it is necessary for payroll purposes); they disclosed it to a rather small number of persons (parties to the lawsuit and the judge); they did not obtain or expect to obtain any monetary benefit from that disclosure; and they did so out of carelessness rather than malice (the employer’s counsel promptly asked opposing counsel to delete the documents and corrected the record when the problem was brought to their attention).

There are also criminal penalties for infringing on privacy. The statutory basis is Code Pénal, article 226-1:

Est puni (...) le fait, au moyen d'un procédé quelconque, volontairement de porter atteinte à l'intimité de la vie privée d'autrui :

1° En captant, enregistrant ou transmettant, sans le consentement de leur auteur, des paroles prononcées à titre privé ou confidentiel ;

2° En fixant, enregistrant ou transmettant, sans le consentement de celle-ci, l'image d'une personne se trouvant dans un lieu privé.

3° En captant, enregistrant ou transmettant, par quelque moyen que ce soit, la localisation en temps réel ou en différé d'une personne sans le consentement de celle-ci.

Lorsque les actes mentionnés aux 1° et 2° du présent article ont été accomplis au vu et au su des intéressés sans qu'ils s'y soient opposés, alors qu'ils étaient en mesure de le faire, le consentement de ceux-ci est présumé.

(...)

Lorsque les actes mentionnés au présent article ont été accomplis sur la personne d'un mineur, le consentement doit émaner des titulaires de l'autorité parentale.

Voluntarily infringing on one’s privacy, by any technical means, is punished by (...):

  1. By recording or transmitting speech given in private or in confidence, without their author’s consent;

  2. By recording or transmitting the image of someone present in a private place, without their consent;

  3. By recording or transmitting by any means the location of another person without their consent, whether in real time or delayed.

When actions described at 1) and 2) were done openly in front of the interested persons, and they did not oppose them when they had the ability to do so, their consent is presumed.

(...)

When actions mentioned here target a minor, consent must come from a legal guardian.

There is no test of "expectation of privacy" or similar - the test is whether the recording was done in a private place, which is usually an objective and obvious test. It does not discriminate between your home, someone else’s, etc.

The more fuzzy part is "infringing on one’s privacy". Suppose I am babysitting my five-year-old niece, and she is running in my garden (a private place, but visible from the street). As she is a minor and her parents are absent, it is not possible to obtain consent to film her. Still, it would be socially acceptable for me to film her; a majority of people would even approve of me posting the film on Facebook without consulting with the parents first. (The parents could ask me to not do that for image right considerations, though.) On the other hand, if the filming is done by some random passer-by leaning over the fence, that would be considered an invasion of privacy by most people. I suspect, but could not find a case on point, that courts would follow the general appreciation that the former situation is not an invasion of privacy but the latter is.

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