A Victoria lawyer says existing Canadian case law offers little guidance when it comes to the legality of photographing and filming celebrities like Prince Harry and his wife Meghan Markle.
The couple said to be residing in North Saanich have threatened legal action against British paparazzi after they recently took pictures of Markle while taking a walk in North Saanich.
“The law isn’t that well tested in Canada on those issues,” said Bruce Hallsor, a Victoria-based lawyer. Hallsor said three aspects come into the play: the provincial privacy act, which broadly prohibits unreasonable violations of personal privacy; common law (trespassing and privacy); and criminal law (harassment).
“…the rules are essentially these,” he said. “It is an invasion of privacy to photograph or surveil somebody in their home, which would include a fenced-in or private outdoor space.”
Examples of exceptions to this broad rule include inviting attention while standing in a yard or even a window, he said. In other words, private property comes with a presumption of privacy, with some exceptions.
“On public property, the presumption would be the opposite, that you don’t have a reasonable expectation of privacy when you are in a public place, whether that is out shopping, at a store, whether you are going to the theatre, whether you are in a park. The presumption would be that you are in a public place and you are aware that somebody might take your photograph or watch you or come up and talk to you.”
While harassment is a criminal matter, the bar for it is “pretty high” in Canada, said Hallsor. “I’m not a UK lawyer, but there is a much more codified set of rules there for paparazzi about harassment, but that doesn’t exist here. It has never been adopted. But if you are stalking somebody, interfering with their daily routine, causing a safety concern — those would be things that would lead you to look at harassment.”
Ultimately, harassment revolves around the question of intent, said Hallsor. “Are you deliberately harming a person, knowingly causing mental distress, or causing physical safety issues? That is a pretty high test.”
Prince Harry has in the past spoken of “harassment” by media especially the notorious British yellow-sheets. His mother, Princess Diana, died along with her partner Dodi Fayed on Aug. 31, 1997 in car crash while paparazzi were pursuing them.
Perhaps the defining case in Canadian law around these issues is the 1998 case of the Aubry v. Éditions Vice-Versa as ruled by the Supreme Court of Canada. The case revolves around a Quebec celebrity, who sued a magazine for damages after a photographer had taken a picture of her without her consent in public.
The majority ruling in favour of woman found that the “artistic expression of the photograph cannot justify the infringement of the right to privacy it entails.”
“An artist’s right to publish his or her work is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work,” it reads. “It has not been shown that the public’s interest in seeing this photograph is predominant.”
Writing a separate dissenting opinion, chief justice Antonio Lamer argued that the “public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances.”
Hallsor is not sure how relevant that case might be for the royal couple.
“I don’t know how directly related it is to potential situation with [Prince Harry and Megan Markle],” he said. “I really think any case they bring forward about the things that they have complained about so far would really be a case of first instance in Canada. A lot of it might come down to how sympathetic [a] judge is with their situation or not.”
The provincial privacy act comes with a media proviso by saying that the “publication of a matter is not a violation of privacy if the matter published was of public interest or was fair comment on a matter of public interest.”
This raises the obvious question of whether Markle’s stroll through North Saanich Horth Hill Park was a matter of public interest or fair comment.
“I don’t think she has a reasonable expectation for privacy, if she is walking through a public park,” said Hallsor. “I understand that there is an accusation that somebody was hiding in the bush. That kind of behaviour, if it was systemic, might lead to harassment or something like it. But my quick take on it is it would be very difficult to prosecute for that.”
As William Kowalski of PEN Canada, the national branch of Poets, Playwrights, Editors, Essayists, Novelists, an international advocacy group for writers, has written, it is not a crime in Canada to photograph or film in any public place, or in any private place to which the public is admitted, then publish those pictures and films, subject to very limited constraints.
The same broad principle also applies when it comes to taking pictures or filming in any government site other than areas with restricted access.
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