Breaking new ground, the Federal Court recently certified a proposed privacy class action alleging the novel tort of “publicity given to private life” on the condition that the plaintiffs name an identified representative of the class. In John Doe and Suzie Jones v. Her Majesty the Queen, two plaintiffs alleged that Health Canada breached their privacy, leading them to seek certification under pseudonyms to protect their identities. The Court certified for the first time in a Canadian class action the novel claim of publicity given to private life. Recognizing the tension between privacy and the role of class representatives, however, the Court required the plaintiffs to identify a named representative.

Background: Medical Marihuana Privacy Breach                                   

The anonymous plaintiffs in John Doe alleged that Health Canada wrongfully identified them as participants in the federal program for access to medical marihuana. In November 2013, Health Canada sent oversized envelopes marked “Marihuana Medical Access Program” through Canada Post to approximately 40,000 individuals registered in the program. The plaintiffs alleged that by identifying on the envelopes the participants’ names together with the name of the program, Health Canada breached their privacy and exposed them to security concerns. They claimed that a reasonable person would conclude from the envelopes that the addressees were associated with the federal program, suffered from serious medical conditions, and possessed or consumed marihuana.

The November 2013 mailings were contrary to past practice and, on November 21, 2013, the Deputy Minister of Health Canada acknowledged that the envelopes resulted from administrative error. In response to 339 complaints, the Privacy Commissioner subsequently concluded that the mailings violated the Privacy Act by referring to the program together with the individuals’ names.

Court Certifies Class Action Given Low Evidentiary Threshold

Justice Phelan continued the trend in the federal courts of applying a relatively low evidentiary threshold at the certification stage. For more on the federal courts’ liberal and purposive approach to class action certification, see our recent post of July 23, 2015 on the Condon v. Canada decision.

Continuing this theme, Justice Phelan held that certification was appropriate in John Doe, subject to amendments to the pleadings, including identifying a named representative. It was not plain and obvious that the plaintiffs’ causes of action would fail, and the Privacy Commissioner’s report was itself sufficient to provide “some basis in fact” for the other elements of the class certification test.

In addition to causes of action in breach of contract/warranty, negligence and breach of confidence, the plaintiffs alleged novel causes of action for intrusion upon seclusion and “publicity given to private life.” Justice Phelan held that the area of privacy rights is developing rapidly and that the development or limitation of novel breach of privacy claims should not be decided at certification.

Although Canadian courts have been dealing with the novel cause of action for intrusion upon seclusion since the Ontario Court of Appeal’s decision in Jones v. Tsige, the tort of publicity given to private life has not yet been directly recognized in a Canadian class action. In the United States, the tort is defined as:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

a) would be highly offensive to a reasonable person and

b) is not of legitimate concern to the public. [Restatement (Second) of Torts, §652D]

Justice Phelan only took issue with the pleading of breaches of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. However, consistent with his view on the rapid development of privacy rights, Justice Phelan gave the plaintiffs an opportunity to amend the allegations under the Charter.

“Publicity Given To Private Life” And Anonymity Of Class Representatives

John Doe demonstrates that the rapid development of privacy law has implications for class action procedure. In particular, certifying the U.S. tort of publicity given to private life – which has at its core the publication of private information – raises the issue of whether the class representative can remain anonymous under a pseudonym or whether they must be identified to fulfill their role.

On one hand, publically identifying the class representative may further publicize aspects of the representative’s private life and may cause further damage. This concern is particularly important in the class action context, given the requirement of providing notice to class members and the generally higher profile nature of class proceedings. On the other hand, class representatives must be accountable to absent class members in how they exercise their responsibilities to the class, including instructing counsel, reviewing settlement offers, and negotiating retainers with counsel.

Justice Phelan recognized this tension and held that “it is the Court’s intention that, if feasible, at least one public class representative should be identified.” Justice Phelan made the certification order conditional on the plaintiffs amending their Statement of Claim “naming an identified class representative.” The plaintiffs’ counsel suggested in the course of argument that this was feasible.

John Doe shows that even in privacy class actions where the alleged damage arises from the publication of class members’ names, at least one named representative plaintiff should be identified (if at all possible) to be accountable to class members in the prosecution of the litigation.

We expect the significance of this decision to be tested where data breaches result in public disclosure of private information, such as cases where hackers leak information stolen from corporate networks. Other class action decisions recognize that in some circumstances, the class representative may remain anonymous.