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Personality rights in Canada – An Introduction
Canada recognises a common law tort of misappropriation of personality, the beginnings of which can be traced back to the 1970’s in the case of Krouse v Chrysler Canada. The right of an individual to control the use of his or her persona is also protected by privacy statutes and human rights legislation.
While at the federal level, there are two statutes dealing with privacy i.e. Privacy Act (R.S. 1985, c. P-21) and the Personal Information Protection and Electronic Documents Act (PIPEDA), common law provinces like British Columbia, Manitoba, Saskatchewan and Newfoundland have their own acts dealing with privacy.
British Columbia- Privacy Act R.S.B.C. 1996 c.373
Manitoba-The Privacy Act R.S.M. 1987 c.P125
Saskatchewan- The Privacy Act R.S.S. 1978 c.P-24
Newfoundland- The Privacy Act R.S.Nfld. 1990 c.P-22
I. The ‘Property’ Element
In Athans v Canadian Adventures Camps, the Ontario High Court recognised proprietary right in the exclusive marketing for gain of personality, image and name. It held that the commercial use of a representational image made without consent constituted an invasion and pro tanto am impairment of the exclusive right to market personality.
II. The Public Interest and the ‘Sales v Subject’ Distinction
In what is probably the most cited Canadian case- Gould Estate v Stoddart Publishing, at trial a very elaborate review was made of most of the case law relating to the appropriation of personality. The misappropriation of personality argument was rejected on the grounds of overriding public interest, which at times placed limits on the tort. The ‘’sales v subject’ distinction was considered. While ‘sales’ were evidence of commercial exploitation and would give rise to the tort, the ‘subject’ criterion concerned the dissemination of true non-libellous information that would contribute to the public debate of political or social issues.
III. Right to Respect for Private Life
Every person has a right to respect for his private life. And this includes the right to control the use of one’s image. This important ruling was handed down by the Supreme Court of Canada in Les Editions Vice-Versa v Aubry. The case was decided on the basis of Quebec’s civil law and the Quebec Charter.
* Commercial Use
* Public Interest, Freedom of Expression
* Dignitary Interests as basis of action
* Respect for Private Life
Articles, documents and working papers
1. D Collins, “Age of the living dead: Personality rights of deceased celebrities,’ Alberta Law Review, (2002), Vol. 39, Part 4, 914-933.
2. S H Abramovitch, “Misappropriation of personality,” Canadian Business Law Journal, 2000, Vol. 33, 230-246.
3. C Nest, “From ‘ABBA’ to Gould: a closer look at the development of personality rights in Canada” (1999) 5 Appeal 12.
4. M Flagg, “Star crazy: Keeping the right of publicity out of Canadian law” (1999), 13 Intell. Prop. J., 179.
5. R Howell, “Personality rights: A Canadian perspective,” Commonwealth Law Conference, (1990) Vol. 9th, 337-352.
6. D Vaver, “What’s mine is not yours: Commercial appropriation of personality under the Privacy Acts of British Columbia, Manitoba and Saskatchewan” (1981) 15 U.B.C.L. Rev. 241.
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