Law Times

Page 12 January 25, 2016 • Law Times www.lawtimesnews.com FOCUS Case against CBC journalists sets precedents for privacy, media law BY YAMRI TADDESE Law Times A former Memorial Uni- versity professor is seeking an extension to the deadline to appeal a jury ruling that found CBC journalists did not breach a pri- vacy tort when they investigated the professor for a television se- ries that questioned his scientific integrity. The jury's decision last sum- mer also declined Ranjit Chan- dra's claims for damages for li- bel. The court then ordered $1.6 million in costs again Chandra. Although the window for ap- peal has expired, Chandra is now bringing a motion for deadline extension. Richard Bennett, counsel for Chandra, said he could not comment on why his client is seeking the extension or what the ground for appeal would be should the motion be granted. Chandra v CBC set important precedents for how the nascent tort of intrusion upon seclusion will be considered in the context of journalistic activity. The case is "the only example of an authori- tative, thoughtful, substantive decision on the scope of the tort" since its inception in 2012 in Jones v. Tsige, according to Daniel Mi- chaluk, chairman of Hicks Morley Hamilton Stewart Storie LLP's in- formation management and pri- vacy practice group. "We have our first narrowing principle — it applies to a par- ticular type of expression," Mi- chaluk says. Despite the jury's finding in Chandra that CBC journalists' collection of private information was justified, lawyer Lindsay Wasser says it's still likely claims under the tort will continue to be brought alongside defamation lawsuits. But Wasser, co-chair of the privacy and data protection practice at McMillan LLP, says it's unlikely the claims will be successful going forward. "In many, many cases, the journalists are acting in good faith and doing their utmost to report responsibly and report the truth, and when that hap- pens, it's going to be hard to make out the case for intrusion upon seclusion," Wasser says. Since Jones v. Tsige, claims under the tort of intrusion upon seclusion have been considered in cases where defendants were caught snooping on medical re- cords and other personal infor- mation. When Chandra sued the CBC for airing a series entitled The Secret Life of Dr. Chan- dra, he took issue not just with the content of the documentary but the investigative techniques CBC journalists used as well. Chandra said those tech- niques, which he said included surreptitious monitoring of his e-mails, breached his right to be free from intrusion upon seclu- sion. The CBC moved to strike out that claim, arguing the tort doesn't apply in the context of the publication or dissemination of information by a broadcaster. But the Ontario Superior Court decided it was fair game. Accord- ing to the court, it was up to the jury to decide whether the CBC's collection of otherwise private information was justified. "The fact that the allegations made by the plaintiff against the CBC defendants arise in the context of those defendants' purported journalistic activities and purposes does not, in my view, necessarily preclude an ac- tion against them for invasion of privacy," wrote Justice Graeme Mew in Chandra v CBC. "However, as already noted, journalistic activities and prac- tices lie at the heart of claims for the protection of freedom of expression and freedom of the press and, as a result, claims for the protection of privacy have to be reconciled with, and even yield to, competing claims for protection of freedom of expres- sion and freedom of the press," the judge said. Christine Lonsdale, who rep- resented the CBC, says that in dealing with this question, the judge was thinking about the phone-hacking scandal in the UK involving a tabloid newspaper. "I think that's what caused Justice Mew to say, 'I'm not going to accept there is no scope ever,'" she says. The CBC also attempted to strike out the case on the basis that before a claim is brought to court under the tort of intrusion upon seclusion, it must first go to the privacy commissioner as stated in the Personal Informa- tion Protection and Electronic Documents Act. The judge tossed out that ar- gument, saying PIPEDA leaves open to a complainant the op- tion of bringing a civil proceed- ing. According to Wasser, that is incorrect and contradicts what's stated in PIPEDA. "When you go back to the leg- islation, in fact what the legisla- tion says is that after receiving a report from the privacy commis- sioner or a notice that the com- missioner is not going to proceed with the complaint, then you can go to court," she says. "That seems to be ignored," Wasser adds. "The court may have intentionally or unintentionally expanded the route to get to court where PIPEDA does apply." Still, the judge was sure to in- struct the jury on the limits of pri- vacy in the context of journalism. "Absent evidence of any ille- gal acts on the part of the CBC, the law recognizes that journal- ists are not automatically subject to the same legal constraints and obligations imposed on their sources," Mew said. "History is replete with examples of sources willing to act as whistleblow- ers who breach legal obligations they owe in the course of provid- ing information to the media. "But unless it would breach a higher-order public interest for a journalist or broadcaster to dis- seminate such information, which is not the case here, there is no impropriety and, it follows, any intrusion into another's seclusion which results is not unlawful." And in a decision that drew a new boundary for the tort of intrusion upon seclusion, the jury found the CBC collected its information lawfully and within the context of responsible com- munication. "I wouldn't say that I'm en- tirely surprised by the approach the court took — it basically said a balancing has to occur," says Wasser. "One of the elements of intrusion upon seclusion is that the activity of the defendant must have been without lawful justification." LT Lawyer Lyndsay Wasser says that if journalists are acting in good faith and doing their best to respect the truth, it will be difficult to make the case for intrusion upon seclusion. One of the elements of intrusion upon seclusion is that the activity of the defendant must have been without lawful justification. Lyndsay Wasser Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! Reprints are great for: Been in Law Times Want a record of it • Firm promotional material • Use on your web site • Training and education • Suitable for framing $200–$250/reprint We provide a colour PDF and unlimited reproduction rights. For more information or to order reprints, please e-mail Gail Cohen at: gail.cohen@thomsonreuters.com It's time to rank… THE TOP 10 LITIGATION AND CORPORATE LAW BOUTIQUES Complete the survey online at canadianlawyermag.com/surveys and make your picks. SURVEY IS OPEN UNTIL MARCH 1 st

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