Privacy Act

Canadian Photography Laws » The Laws » Provincial Law » British Columbia » Privacy Act

This act protects the privacy of individuals.  It is a very flexible privacy law, leaving it’s interpretation open to the courts.  This means that publishing a photo of a person, without their consent, may be considered a breach of privacy.  Though since the law is flexible, it could be argued that as little as taking a photo of a person is a breach of privacy.

This law, like other Provincial Privacy Laws, protect it’s citizens by allowing them to control the use of their likeness, for example, a photo or video of them, or a recording of their voice.  It gives them control over what happens to their photo, which includes storing, publishing and selling the photo.

You can avoid the privacy issue by getting all of the prominent subjects of your photos sign Model Releases, which are contractual agreements which grant you full control of the photograph, making it easier to publish and sell.

Privacy Act, 1.:
Violation of privacy actionable
(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
(3) In determining whether the act or conduct of a person is a violation of another’s privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.
(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

It is not a violation of privacy if it is a matter of public interest.

Privacy Act, 2. (3):
A publication of a matter is not a violation of privacy if (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation.

Without consent, it is illegal to use a photo of an identifiable or recognizable person, or their name in an advertisement.

Privacy Act, 3.:
(1) In this section, “portrait” means a likeness, still or moving, and includes
(a) a likeness of another deliberately disguised to resemble the plaintiff, and
(b) a caricature.

(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.

(4) A person is not liable to another for the use, for the purposes stated in subsection (2), of his or her portrait in a picture of a group or gathering, unless the plaintiff is
(a) identified by name or description, or his or her presence is emphasized, whether by the composition of the picture or otherwise, or
(b) recognizable, and the defendant, by using the picture, intended to exploit the plaintiff’s name or reputation.

(5) Without prejudice to the requirements of any other case, in order to render another liable for using his or her name or portrait for the purposes of advertising or promoting the sale of
(a) a newspaper or other publication, or the services of a broadcasting undertaking, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the readership, circulation or other qualities of the newspaper or other publication, or to the audience, services or other qualities of the broadcasting undertaking, as the case may be, and
(b) goods or services on account of the use of the name or portrait of the other in a radio or television program relating to current or historical events or affairs, or other matters of public interest, that is sponsored or promoted by or on behalf of the makers, distributors, vendors or suppliers of the goods or services, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the goods or services, or to their manufacturers, distributors, vendors or suppliers.

References

I am not a lawyer, and this is not legal advice. For more information, see the Disclaimer.