A couple of readers have asked to what extent US based social media cases will apply in Canada. We don’t yet have a large body of social media cases in Canada (other than run of the mill termination cases involving social media), so there tends to be a lot of discussion up here about US based social media cases. Given that the US population is 10x larger than Canada’s population, it makes sense that there is simply a much larger volume of American caselaw to work with.
For novel issues in general, Canadian courts will often take into consideration cases from other countries in the Commonwealth and the US.
So for the world of social media, where many of the issues remain novel and unlitigated, US cases may be influential on our own adjudicators looking for guidance and analysis. While US cases are not a binding legal precedent, they may provide an important backdrop to a Canadian decision.
A good example is the Eagle v Morgan et al. case (for a commentary on the piece, see my recent blog post here). In that case, one of the three successful claims was for a breach of the former employee’s privacy tort of intrusion upon seclusion by appropriation of identity. However, while Dr. Eagle won certain of her legal claims, she was unable to prove any actual damages and therefore was awarded $0.
Dr. Eagle may have had a better result in Canada. Last year, the US tort of intrusion upon seclusion was introduced into our jurisprudence through the Jones v Tsige (2012 ONCA 32) case (discussion in a past blog post here). The court adopted the US tort, but with a critical difference: there is no requirement to prove harm to a recognized economic interest in Canada to be awarded damages.
Paragraph 70 and 71 of the Jones v Tsige case set out the elements of the tort as follows:
 I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
 The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. [emphasis added]
Thus, while Dr. Eagle failed to obtain any damage award in Pennsylvania, in Ontario at the least, she may have won her claim and received an award notwithstanding her failure to establish harm to a recognized economic interest.
Damages for the Ontario tort are capped at $20,000, so it remains to be seen whether that relatively low cap will discourage people from spending big legal fees for a fairly low win. The tort will no doubt be coupled with more fruitful claims in most situations.
There are two key concepts to take away from the relationship between the Eagle and Jones cases:
1. Canada is not a US State, and indeed a different country with different laws. Yes, really. Check on Wikipedia if you don’t believe me: http://en.wikipedia.org/wiki/Canada (English) or http://fr.wikipedia.org/wiki/Canada (French).
2. US cases do influence our laws, although not as a binding legal precedent, and always filtered through our Canadian legal lens that tends to result in more employee-friendly results.