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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

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Tuesday, June 09, 2009

Press freedom trumps privacy in case of wayward tape

I can't comment on this as I represented a party to the proceeding, but this is highly relevant to readers of this blog:

Judge dismisses bid for injunction - Nova Scotia News - TheChronicleHerald.ca
A judge refused to grant an injunction against The Chronicle Herald on Monday, clearing the way for the newspaper to publish a story on the contents of a digital recorder that a former federal political aide left in an Ottawa washroom this winter.
... Ms. MacDonnell’s lawyers argued that allowing the Herald to run the story by Stephen Maher, chief of the newspaper’s Ottawa bureau, would be an invasion of her privacy and would cause the 26-year-old irreparable harm.
But Justice Gerald Moir, after deliberating through the supper hour, dismissed the application Monday evening.
"I allow that the harms of publication to Ms. MacDonnell are difficult to define and may be significant, however I would have to weigh that against the public interest in reporting on government and the specific public interest in the story Mr. Maher is following," Justice Moir said.
The judge said he agreed with the Herald’s submission that the taped conversation between Ms. MacDonnell and Ms. Raitt on Jan. 30 was not private because a third person — the driver of the government vehicle in which they were riding — would have heard it.
"I have difficulty seeing Mr. Maher’s June 2009 use of the recording as an intentional invasion of privacy," Justice Moir said.
"Privacy was invaded when a conversation was recorded, when a record was left in a press washroom and when it was not retrieved. Ms. MacDonnell’s lack of knowledge that her recording device contained a record of the conversation cannot, to my mind, put Mr. Maher in the position of an intentional invader.
"It is wrong to deprive the press and the public it serves of remarks made privately but not confidentially, in the sense of trade secrets or privileged communication, after those remarks became available because of poor record keeping or management," the judge said.
"Mr. Maher owes no duty of confidentiality to Ms. MacDonnell."

Labels: privacy

6/09/2009 07:20:00 AM :: (1 comments) :: Backlinks

Comments:

I find the judge's reasons for saying that the conversation was not private to be totally unpersuasive. Can a Cabinet minister not have a private conversation in the presence of an official driver? Give me a break?

And for someone to pick up a tape recorder in a washroom and pretend that it's not an invasion of privacy to listen to it, much less publish it, is absurd.

The decision as a matter of law and policy that press freedom trumps invaded privacy in matters of public interest may be justifiable.

As a matter of ethics, the reporter's actions and his newspaper's actions are sleazy. What a way to make a living?

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