Law Times

Law Times • sepTember 8, 2015 Page 5 www.lawtimesnews.com Ashley Madison class action Intrusion upon seclusion, product liability among potential issues BY YAMRI TADDESE Law Times s the fallout from the Ashley Madison data breach continues to unfold, one of the law- yers representing the plaintiffs in a class action against the infidel- ity web site says the case could engage the new tort of intrusion upon seclusion. Charney Lawyers and Sutts Strosberg LLP have announced the filing of a national class pro- ceeding on behalf of Canadians who subscribed to Ashley Madi- son and whose personal informa- tion was disclosed in the series of data posted on the Internet by the hackers. None of the allegations have been proven in court. The action, brought against Avid Dating Life Inc. and Avid Life Media Inc., the corpora- tions that run ashleymadison. com, follows what police have called one of the largest data breaches in the world involving users' names, e-mails, home ad- dresses, and message history. Prior to the filing, Ted Char- ney told Law Times there's a chance the users of Ashley Mad- ison could successfully plead the tort of intrusion upon seclusion that would hold the company accountable for not guarding against a privacy breach. "Ordinarily, the intrusion is caused by the defendant or an employee of the defendant as opposed to someone infiltrat- ing the web site and releasing the information," says Charney. "But the tort is evolving, so there could be a failure to prevent in- trusion upon seclusion." He adds: "No one has really had to decide that in the juris- prudence to date because the tort is so new." The court has certified an ac- tion involving the tort of intru- sion upon seclusion in Condon v. Canada, a case dealing with the federal government's loss of a hard drive that contained the informa- tion of hundreds of thousands of student loan participants. "What happened there was the hard drive was lost and it was never recovered and all the personal information on the hard drive was lost," says Char- ney, who's acting as one of the counsel in the matter. "So yes, by analogy, there cer- tainly could be a certified cause of action for intrusion upon se- clusion" in the Ashley Madison matter, he adds. Prior to the announcement of the class action, lawyers wor- ried it might be difficult to find a representative plaintiff given the nature of the web site. But Char- ney Lawyers and Sutts Strosberg LLP have since announced the representative plaintiff is Eliot Shore of Ottawa. "Mr. Shore was single again after 30 years of marriage after he lost his wife to breast cancer. He joined the web site for a short time in search of companion- ship but never met anybody in person from the site," the firm said in a statement. The Ashley Madison web site prominently features a woman pressing her forefinger to her lips. Below that image are logos that read "trusted security award" and "100% discreet service." "Given [Ashley Madison's] representation as to anonymity and how sensitive the release of the information is, this could ultimately be a very, very signifi- cant class action," says Charney. But some lawyers say the us- ers of Ashley Madison took an inherent risk when they sub- scribed to the web site. While they have an expectation of pri- vacy, it "operates at a very mini- mal level," says Gilbertson Davis LLP partner Lee Akazaki. "Once you actually hook up with somebody, the discretion is only as strong as the discretion of the person you meet," he adds, noting "there's a bit of an inher- ent leak in the whole design." "If you have serial relationships with people that you find on this web site, then every time you en- ter into a new relationship . . . or you break up with the previous one, you're opening yourself up to risk. I think there's no question that there would be an issue raised about how strong cyber security was in Ashley Madison's case. On the other hand, it is also an inher- ently risky activity." The case will also likely con- sider what kind of information is valuable in the context of law- suits. While there's a recogni- tion among the courts that the loss of financial or health data is both cumbersome and poten- tially damaging, assessing the value of materials containing people's information on dating and infidelity is a relatively new area for the courts. Some lawyers go as far as to say security was part and parcel of the product Ashley Madison was selling to users, an argument that could evoke the mislead- ing advertising provisions under the Competition Act as well as provincial product liability laws. But what Ashley Madison offers is "technically not a prod- uct," says Akazaki. "It's a service, really. It's an Internet-based ser- vice as opposed to a product; nothing gets delivered to you. It's a matchmaking service in the same way that Internet dat- ing services are not products." On Aug. 24, Toronto police said they had two unconfirmed reports of suicide as a result of the Ashley Madison hack. But Akazaki says that's unlikely to change the test for what quali- fies as product liability within the limitations of the civil law. "The law treats products as physical things and, perhaps in a world in which a lot of the things we consume are intellectual property as opposed to physi- cal things, the law should catch up," he says. But he adds it would be very difficult to draw a line on what qualifies as a product failure resulting in injury when the issue in question deals with intellectual property. LT NEWS SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, and more. For more information visit www.practicallaw.ca A While Ashely Madison users have an expec- tation of privacy, it 'operates at a very mini- mal level,' says Lee Akazaki.

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