The Privacy Act protects an individual's privacy with respect to personal information. It gives a right of action, without proof of damage, for wilful violation of a person's privacy without his or her consent.
Examples of violation of privacy include doing any of the following without the consent, expressed or implied, of the person or some other person who has the lawful authority to give the consent:
- auditory or visual surveillance;
- listening to or recording a conversation in which a person participates, or listening to or recording of messages to or from that person passing by means of telecommunications;
- use of the name, likeness or voice of a person for the purposes of advertising, sale, or for any other purposes of gain if the person is identified or identifiable and the user intended to exploit the name, likeness or voice of that person; or
- use of letters, diaries or other personal documents of a person.
However, an act, conduct or publication is not a violation of privacy where:
- it is consented to;
- it was incidental to the exercise of a lawful right of defence of person or property;
- it was authorized or required by a law or a court in the province;
- it was taken by a peace officer or a public officer acting in the course and within the scope of his or her duty; or
- it was taken by a person engaged in news gathering for a newspaper or a licensed broadcaster and such act, conduct or publication was reasonable in the circumstances and was necessary for, or incidental to, ordinary news gathering activities.
A publication of any matter is not a violation of privacy so long as the manner in which the information was obtained is not itself a violation of privacy where:
- there were reasonable grounds for belief that the matter published was of public interest or was fair comment on a matter of public interest; or
- the publication was, in accordance with the rules of law relating to defamation, privileged.
The Act provides that the nature and degree of privacy to which a person is entitled in any situation is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. In determining whether any act, conduct or publication constitutes a violation of the privacy of a person, the Act requires that consideration be given to:
- the nature, incidence and occasion of the act, conduct or publication;
- the effect of the act, conduct or publication on the health and welfare or the social, business or financial position of the person, his or her family or relatives;
- any relationship between the parties; and
- the conduct of the person and of the defendant both before and after the act, conduct or publication, including any apology or offer of amends made by the defendant.