The Privacy Act

The Privacy Act, C.C.S.M. c. P125 bilingual version (HTML) Table of Contents Section 1 Definitions 2 Violation of privacy 3 Examples of violation of privacy 4 Remedies 5 Defences 6 Right of action in addition to other rights 7 Effect on law of evidence 8 Application of Act HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Definitions 1(1) In this Act "common-law partner" of a person means a person who, not being married to the other person, is cohabiting with the other person in a conjugal relationship of some permanence; (« conjoint de fait ») "court" means the Court of King's Bench except in section 5 where it means any court and includes a person authorized by law to take evidence under oath acting for the purposes for which the person is authorized to take evidence; (« tribunal ») "defamation" means libel or slander; (« diffamation ») "family" means the spouse, common-law partner, child, step-child, parent, step-parent, brother, sister, half-brother, half-sister, step-brother, step-sister, of a person. (« famille ») Registered common-law relationship 1(2) For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence. S.M. 2002, c. 24, s. 47 ; S.M. 2002, c. 48, s. 28 ; S.M. 2008, c. 42, s. 77 . Violation of privacy 2(1) A person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person. Action without proof of damage 2(2) An action for violation of privacy may be brought without proof of damage. Examples of violation of privacy 3 Without limiting the generality of section 2, privacy of a person may be violated (a) by surveillance, auditory or visual, whether or not accomplished by trespass, of that person, their home or other place of residence, or of any vehicle, by any means including eavesdropping, watching, spying, besetting or following; (b) by the listening to or recording of a conversation in which that person participates, or messages to or from that person, passing along, over or through any telephone lines, otherwise than as a lawful party thereto or under lawful authority conferred to that end; (c) by the unauthorized use of the name or likeness or voice of that person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, that person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or (d) by the use of the person's letters, diaries and other personal documents without the person's consent or without the consent of any other person who is in possession of them with the person's consent. Remedies 4(1) In any action for violation of privacy the court may (a) award damages; (b) grant an injunction if it appears just and reasonable; (c) order the defendant to account to the plaintiff for any profits that have accrued, or that may subsequently accrue, to the defendant by reason or in consequence of the violation; and (d) order the defendant to deliver up to the plaintiff all articles or documents that have come into the defendant's possession by reason or in consequence of the violation. Considerations in awarding damages 4(2) In awarding damages in an action for a violation of privacy of a person, the court shall have regard to all the circumstances of the case including (a) the nature, incidence and occasion of the act, conduct or publication constituting the violation of privacy of that person; (b) the effect of the violation of privacy on the health, welfare, social, business or financial position of that person or their family; (c) any relationship, whether domestic or otherwise, between the parties to the action; (d) any distress, annoyance or embarrassment suffered by that person or their family arising from the violation of privacy; and (e) the conduct of that person and the defendant, both before and after the commission of the violation of privacy, including any apology or offer of amends made by the defendant. Accounting not considered in awarding damages 4(3) Notwithstanding anything in subsection (2), in awarding damages in an action for violation of privacy of a person, the court shall not have regard to any order made under clause (1)⁠(c) in respect of the violation of privacy. Defences 5 In an action for violation of privacy of a person, it is a defence for the defendant to show (a) that the person expressly or by implication consented to the act, conduct or publication constituting the violation; or (b) that the defendant, having acted reasonably in that regard, neither knew or should reasonably have known that the act, conduct or publication constituting the violation would have violated the privacy of any person; or (c) that the act, conduct or publication in issue was reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of person, property, or other interest of the defendant or any other person by whom the defendant was instructed or for whose benefit the defendant committed the act, conduct or publication constituting the violation; or (d) that the defendant acted under authority conferred upon the defendant by a law in force in the province or by a court or any process of a court; or (e) where the act, conduct or publication constituting the violation was (i) that of a peace officer acting in the course of the peace officer's duties; or (ii) that of a public officer engaged in an investigation in the course of the public officer's duty under a law in force in the province; that it was neither disproportionate to the gravity of the matter subject to investigation nor committed in the course of a trespass; and was within the scope of the peace officer's duties or within the scope of the investigation, as the case may be, and was reasonably necessary in the public interest; (f) where the alleged violation was constituted by the publication of any matter (i) that there were reasonable grounds for the belief that the publication was in the public interest; or (ii) that the publication was, in accordance with the rules of law in force in the province relating to defamation, privileged; or (iii) that the matter was fair comment on a matter of public interest. Right of action in addition to other rights 6 The right of action for violation of privacy under this Act and the remedies under this Act are in addition to, and not in derogation of, any other right of action or other remedy available otherwise than under this Act; but this section shall not be construed as requiring any damages awarded in an action for violation of privacy to be disregarded in assessing damages in any other proceedings arising out of the same act, conduct or publication constituting the violation of privacy. Effect on law of evidence 7 No evidence obtained by virtue or in consequence of a violation of privacy in respect of which an action may be brought under this Act is admissible in any civil proceedings. Application of Act 8(1) Notwithstanding any other Act of the Legislature, whether special or general, this Act applies where there is any violation of the privacy of any person. Conflict with other Acts 8(2) Where there is a conflict between a provision of this Act and a provision of any other Act of the Legislature, whether special or general, the provision of this Act prevails.