Hollinsworth began going bald, and decided to undergo surgery so that a hairpiece could be attached to his head. Cable, who worked for BCTV, filmed the operation at the request of the surgeon at Look International. C did not film the surgery specifically for BCTV; it was made for medical instruction purposes only and H consented.
Five years later, BCTV decides to do a feature on baldness. C is assigned to the project with Ms. Aylesworth. They go to Look international, interview the surgeon and get the tape. The surgeon says nothing about confidentiality. Ms. A asks about doctor/patient confidentiality and Look Int'l says it’s ok to use the tape; patient consented to use.
Segment is shown on television. It actually shows Hollinsworth’s face for about 3 seconds.
H sues BCTV, Look and others for breach of confidentiality and breach of the provincial Privacy Act.
** Dismissed action against BCTV
** Awarded 15000$ against Look
** Plaintiff appealed the dismissal of claim against BCTV, and the damage award
Was BCTV liable in defamation?
Was BCTV in breach of confidence?
Was BCTV liable under the Privacy Act?
A person is not liable under the Privacy Act when they act in honest and reasonable belief, and without knowledge that they are violating the privacy of another.
BCTV was not liable in defamation because it had not made a false statement.
BCTV was not liable for breach of confidence as there was no evidence that it knew (or ought to have known) that the videotape was confidential.
Consideration of claim under statute:
** S.1 of Privacy Act is key: "It is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another."
** The Court noted that:
*** "Willfully" applies narrowly to an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person. This was not established in this case.
*** “Without a claim of right”: As per David v McArthur (1969): an honest belief in a state of facts which, if it existed, would be a legal justification
*** In this case: Belief was both reasonable and honest. Therefore, there was no violation of Privacy Act.
Appeal dismissed; Trial decision upheld; Decision in favour of BCTV.