Privacy and personality rights

Copyright protects works. Privacy and personality rights protect people. They matter every time an image maker photographs or films a person, records their voice, uses their name, or tells a story about their life. These rights differ more between and within countries than almost any other area of media law, and they are evolving quickly, especially as digital replicas make it possible to imitate a person's face and voice convincingly.

Canadian law protects privacy and personality through a patchwork: the Civil Code of Québec and the Quebec Charter of human rights and freedoms, privacy statutes in four common law provinces, common law torts developed by the courts in Ontario and elsewhere, and personal information laws. Quebec gives the strongest protection to a person's image.

Two kinds of interest

It helps to separate two interests that the law protects. The first is dignity and seclusion: the interest in being left alone, in keeping private matters private and in not being portrayed falsely. The second is control over the commercial value of one's identity: the interest in deciding whether one's name, face or voice is used to sell something, and in being paid for it. Celebrities care most about the second; private individuals usually care most about the first. The law addresses both, but through different rules.

The sources of protection

Quebec. Article 3 of the Civil Code says every person has a right to the respect of their reputation and privacy, and article 36 lists invasions of privacy, including intentionally intercepting or using private communications, capturing or using a person's image or voice while they are in private premises, keeping their private life under observation, and using their name, image, likeness or voice for any purpose other than the legitimate information of the public. Section 5 of the Quebec Charter protects respect for private life. These provisions apply to filmmakers and photographers working in Quebec and to images of people in Quebec published elsewhere in some cases.

Common law provinces. British Columbia, Saskatchewan, Manitoba and Newfoundland and Labrador have Privacy Acts that make it a tort to violate another person's privacy wilfully and without claim of right; several also make it a tort to use a person's name or portrait for advertising or trade without consent. In Ontario, the Court of Appeal recognized the tort of intrusion upon seclusion in Jones v Tsige (2012), and later Ontario decisions have recognized public disclosure of private facts and placing a person in a false light. Courts in several provinces also recognize the tort of appropriation of personality, which protects against the unauthorized commercial use of a person's identity.

Personal information laws. The federal Personal Information Protection and Electronic Documents Act and provincial private-sector laws regulate how organizations collect, use and disclose personal information in commercial activity, including images. They generally do not apply to the collection, use or disclosure of personal information for journalistic, artistic or literary purposes, so most documentary and artistic work falls outside them, but a production company's handling of cast and crew data, or a commercial photographer's client records, does not.

Photographing people in public

Outside private premises, people generally have a reduced expectation of privacy, and taking photographs or video in public streets, parks and events is usually lawful. But taking an image and publishing it are different acts, and publication raises its own questions.

The leading Canadian case is Aubry v Éditions Vice-Versa (1998). A photographer took a picture of a 17-year-old sitting on a doorstep on a Montréal street, and an arts magazine published it without her consent. The Supreme Court of Canada held that, under Quebec law, the right to one's image is part of the right to privacy, and publishing an identifiable image of a person without consent infringes it unless the public interest outweighs the right, for example where the person plays a role in a public event or appears incidentally in a crowd or a public place. The magazine was liable for modest damages. Outside Quebec, courts have not adopted Aubry as such, but privacy statutes and torts can still apply when images expose private moments or are used commercially.

Public figures and newsworthiness

Public figures, such as politicians, celebrities and people involved in public controversies, have less protection against images and stories about their public roles. News, documentary, biography and commentary about them are generally protected. But public figures keep their right to control commercial uses of their identity, and their private lives, such as health or family matters unrelated to their public role, are not fair game simply because they are famous.

Canadian courts weigh the public interest in information against the privacy interest. In Aubry, the Supreme Court said that people who become involved in public events, or who are public figures, may be photographed in that context. The Supreme Court's decisions on publication of private information also distinguish between matters of genuine public interest and matters that merely interest the public.

Commercial use of identity

Using a person's name, image, likeness or voice to promote a product, service or cause without consent is the clearest violation of personality or publicity rights in both countries. This includes look-alikes and sound-alikes: an advertisement that uses an impersonator to suggest a celebrity's endorsement can violate the celebrity's rights even though the celebrity never appeared.

Canadian courts recognized the tort of appropriation of personality in Krouse v Chrysler Canada (1973) and Athans v Canadian Adventure Camps (1977), where a famous water-skier's image was used in a brochure. The Privacy Acts of British Columbia, Saskatchewan, Manitoba and Newfoundland and Labrador also make unauthorized use of name or portrait for advertising or trade an actionable violation. In Quebec, using a person's image or voice for a purpose other than the legitimate information of the public is an invasion of privacy under article 36.

Children and vulnerable people

Images of children and vulnerable adults require extra care in every jurisdiction. Children cannot give binding consent, so releases are signed by a parent or guardian, and some laws give children additional protection against publication of identifying information, such as youth justice laws that prohibit identifying young offenders and victims. Filming in schools, hospitals, care homes and shelters raises institutional rules as well as legal ones. FILM-320 lesson 9 covers directing children, including employment rules for child performers.

Canada's Youth Criminal Justice Act prohibits publishing information that would identify a young person dealt with under the Act, with narrow exceptions, and courts can issue publication bans protecting victims and witnesses. In Quebec, the right to one's image applies to children, and parental consent is expected for featured images.

Personal information in productions

Productions collect a lot of personal information: cast and crew contact details, identity documents, banking and tax information, medical information for insurance and accommodation, and footage of participants. Even where journalism or art exemptions protect the content of a film, the production company's business records are subject to personal information laws. Keep personal data secure, collect only what you need, delete what you no longer need and be careful when sharing call sheets and casting materials.

Images of people in sensitive situations

Some situations call for particular care regardless of whether a release is strictly required. People photographed at accidents, in hospitals, at funerals, in courtrooms, during police arrests or in moments of grief may later object strongly to publication, and the law, broadcasters' codes and journalistic ethics all pay attention to them.

• Courtrooms: rules on photography and recording in courts differ by jurisdiction and court; many courts prohibit cameras without permission, and publication bans can prohibit identifying parties or witnesses.
• Health information: images that reveal a person's medical condition, disability or treatment are among the most sensitive kinds of private information.
• Victims and survivors: people who have experienced violence, abuse or trauma may be identifiable through images, voices, locations or details; blurring faces may not be enough if voices, tattoos or surroundings identify them.
• Arrests and accusations: showing a person under arrest can imply guilt; careful captions and accurate reporting reduce defamation and privacy risk.

Canadian courts and statutes add specific protections. Publication bans under the Criminal Code protect complainants in sexual offence cases and can be ordered for witnesses, and courts restrict photography in and around courtrooms. Provincial health information laws apply to custodians such as hospitals and clinics, which will set conditions on any filming in their facilities.

Anonymizing participants

When a person's identity must be protected, producers use techniques such as blurring or pixelating faces, altering voices, filming in silhouette, avoiding identifying locations and changing names. Each technique should be tested: modern tools can sometimes reverse weak blurring, and a combination of details can identify a person even if their face is hidden. Promises of anonymity are also promises that the producer must keep, including in raw footage, transcripts and promotional material, so secure storage and careful handling of unedited material matter as much as the final edit.

Consent as an ongoing conversation

Good practice treats consent as more than a signature. Participants should understand what the project is about, how they will be portrayed, where the work will appear and for how long, and whether they can change their minds before publication. Explaining these points in plain language, and checking understanding with people who are young, unwell, grieving or speaking a second language, reduces later disputes and respects the people who make documentary work possible. Some filmmakers show participants a cut of their scenes before release, without giving them approval rights, to catch factual errors and identify safety concerns, such as a location that could reveal where a person in danger lives.