Niemela v. Malamas
Page 15
plaintiff’s real name, address and other personal information. The defendant posted
this information and a picture of the plaintiff on the website. The Court held that the
the defendant had violated that privacy wilfully and without claim of right (at
para. 84).
[48]
Douez v. Facebook, Inc., 2014 BCSC 953, involved Facebook’s use of
Facebook users’ images in its advertising without their consent. Section 3(2) of the
Privacy Act, misappropriation of the name or likeness of a person for commercial
purposes, was in issue.
[49]
In the present case, there are no facts alleged to support a breach of privacy
other than Mr. Niemela’s complaint that Google has published defamatory words
through the snippets attached to URLs in search results.
[50]
Mr. Niemela’s assertion that he has a privacy interest in not having his
reputation harmed conflates the concepts of privacy and reputation. Although the
Supreme Court of Canada in Hill v. Church of Scientology of Toronto, [1995] 2
S.C.R. 1130 at para. 121 [Hill v. Scientology], identified reputational interest and
privacy as the two values underlying the plaintiff’s protection in defamation, it does
not follow that defamatory comments therefore give rise to a breach of the statutory
right to privacy. Mr. Niemela’s factual allegations and his claim for injury to
reputation fall squarely within the law of defamation. As noted in Raymond E. Brown,
Brown on Defamation, 2nd ed., loose-leaf (consulted on 9 June 2015), (Toronto:
Carswell, 1999), vol. 1, ch 1 at 1-2:
The central characteristic of this cause of action is to provide a remedy for
publications damaging to a person’s reputation. The law of defamation,
therefore, provides an appropriate legal vehicle by which persons may
vindicate their personal and business reputation. [Footnotes omitted.]
[51]
In short, there is a tailor-made cause of action addressing the harm
complained of by the plaintiff. That cause of action should be used rather than
adopting a scattergun approach, pleading multiple causes of action which do not fit
2015 BCSC 1024 (CanLII)
plaintiff had an expectation of privacy in relation to postings on that website, and that
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