Les Editions Vice-Versa v Aubry
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[edit] 1 Les Editions Vice Versa v Aubry
Case Name: Les Editions Vice Versa v Aubry
Key Words: privacy, right to image, freedom of expression, artistic expression
Country: CANADA
Citation: [1998] 1 S.C.R. 591
Date: April 9, 1998
Case Number: - 25579
Importance: Damages can be awarded if an identifiable picture of a person is published without permission. It is of no consequence that the photo is not reprehensible or has not caused injury to reputation. The Supreme Court of Canada while finding that the woman’s right to protect her image was more important than the paper’s right to publish the photo without her permission, showed how the individual’s right to privacy could take precedence over artistic and journalistic freedom of expression.
Facts: An action in civil liability had been brought by Aubry( respondent) against the appellants( a photographer and the publisher of a magazine) for taking and publishing in a magazine dedicated to the arts, without consent, a photograph showing the respondent, then aged 17, sitting on the steps of a building. At trial, the judge recognized that the unauthorized publication of the photograph constituted a fault and ordered the appellants to pay $2,000 jointly and severally. The majority of the Court of Appeal affirmed that decision.
[edit] 2 Decision and Reasoning
[edit] 2.1 Right to one’s Image
Quebec courts have applied the principles of civil liability to allow compensation for the prejudice resulting from the use of a person's image without his or her consent. The Court in the instant case was of the view that the right to privacy protects, inter alia, the "narrow sphere of personal autonomy within which inherently private choices are made." Furthermore, this right certainly includes a person's right to his or her image. (Paras 20-23)
The dissemination of the respondent's image constituted a violation of her privacy and of her right to her image. To appropriate another person's image without his or her consent to include it in a publication constitutes a fault. A reasonable person would have been more diligent and would at least have tried to obtain the respondent's consent to the publication of her photograph. The appellants did not do everything necessary to avoid infringing the respondent's rights. In this regard, a parallel can be drawn with the obligation of diligence the news media must meet in gathering information in order to avoid liability. (Paras 23, 53)
It is possible for the rights inherent in the protection of privacy to be infringed even though the published image is in no way reprehensible and has not injured the person's reputation. (Para 54)
[edit] 2.2 Public Interest
The right to privacy is not absolute. It is subject to a series of limits, and its application requires a balancing with other fundamental rights, such as the right to freedom of expression and the public's right to information which are guaranteed by Section 44 of the Quebec Charter. (Paras 25, 55-57)
The content of the concept of public interest depends on the nature of the information conveyed by the image and on the situation of the parties involved. On the other hand, it must be balanced against the reasonable expectation of privacy of the person whose image is reproduced and, generally, against the severity of the infringement of the parties' rights. (Para 26)
It is possible for the public interest to justify the dissemination of the image of a person who is in a crowd or is at the scene of an important event in a purely incidental manner. In this case, the public interest does not justify the appellants' fault. Consent of the respondent could have been obtained but was not. (Para 27, 60)
[edit] 2.3 Damage
It is necessary to establish prejudice suffered- be it extra-patrimonial and/or patrimonial. Where extra-patrimonial damages are concerned, the infringement of a right guaranteed by the Quebec Charter is in itself insufficient to establish that damage has been sustained. Nor is an award of symbolic damages justified when the courts wish to punish the infringement of a right that will, in most cases, result in minimal injury. This would be contrary to the principles of civil responsibility. (Para 67-68). Damages must be proven.
[edit] 2.4 Result
Appeal dismissed with costs.
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