According to media report, Prince Harry has joined his wife Meghan Markle in North Saanich (Steve Parsons/pool photo via AP, File)

What is public? Paparazzi and Canadian law

Lawyer lays out legalities for photography in public after royalty-chasers descend on North Saanich

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.

RELATED: Four things ‘not’ to do if you run into Prince Harry and Meghan in B.C.

RELATED: Local Monarchist says Saanich Peninsula would be a ‘great place’ for Prince Harry and Meghan Markle

“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.

RELATED: Prince Harry reunites with Meghan and Archie in Victoria

RELATED: Prince Harry: ‘Powerful media’ is why he’s stepping away

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.”

He acknowledged that the publication of the photo without the woman’s permission constituted a violation of her privacy, and chided the photographer for failing to secure permission, but also questioned lower court efforts to limit the notion of public interest to the right to receive “socially useful” information.

RELATED: Anti-tax group calls for no federal funds for Prince Harry, Meghan Markle while in Canada

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.”

RELATED: Royal deal clears way for Harry, Meghan part-time Canada move

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.


Like us on Facebook and follow @wolfgang_depner

Just Posted

Abandoned Neucel mill in Port Alice to cost at least $17 million to decommission

Removing hazardous waste and de-risking the site ratchet up bill to taxpayers

Storm watchers urged to be careful after two rescued from Ucluelet shoreline

“People need to take responsibility of their own actions, the district can only do so much.”

Fire crews put out blaze in Cowichan Secondary outbuilding

Three halls respond to fire in storage structure

Overnight shutdown of Highway 1 at McKenzie interchange for sign installation

Traffic will be impacted in both directions, detour available

Furstenau accuses Horgan of politicizing new Cowichan hospital as premier makes Valley campaign stop

Premier suggests that new facility hinges on re-election of NDP government

Orange Shirt Society launches first textbook on residential school history

Phyllis Webstad and Joan Sorley worked on the 156-page book to help educate students

B.C. Greens introduce all-women slate for Victoria, Saanich and Oak Bay ridings

School trustee Nicole Duncan assumes Oak Bay-Gordon Head candidacy

Man who stole truck and canoe in View Royal believed he was fleeing zombies, court finds

Judge finds man not criminally responsible by reason of mental disorder for 2019 thefts

B.C. VOTES 2020: Businesses now owe $6 billion in deferred tax payments

COVID-19 relief from remittance to province ends with September

Long-term care study credits fewer COVID deaths in B.C. than Ont. to funding, policy

The study was published Wednesday in the Canadian Medical Association Journal

Float-plane crash near Oyster River leaves pilot injured

The plane crashed shortly after take-off from a private property and had no other passengers on board

More sex abuse charges laid against B.C. man who went by ‘Doctor Ray Gaglardi’

Investigators now focussing efforts on alleged victims within the Glad Tidings Church community

Photographer Eiko Jones delivered the 11th Annual Haig Brown lecture at Tidemark Theatre

Jones also screened his newly completed movie Heartbeat of the River at the event

RCMP hope public can help locate missing Nanaimo man

Gary Alexander Davidson, 54, has not been seen or heard from since Sept. 20

Most Read