the violation IS the harm!

A class action suit filed against Google, Vibrant Media and the Media Innovation Group over tracking cookies and targeted ads was dismissed in a Delaware court in October 2013.  While accepting and agreeing that the companies in question had collected user personal information by circumventing browser settings and then sold that information to ad companies, the Judge felt that the plaintiffs had not shown that they had suffered harm due to these practices, and thus the action could not be sustained.

This is not, by any stretch of the imagination, the first time that the harm requirement has prevented individuals from holding to account those who invade their privacy.  Claims for harm, so-called speculative harm and for emotional distress as a result of the injury have all been attempted and dismissed.

In Canada, there is no requirement that injury be established in order to bring forward a claim.  Nevertheless, the question of harm necessarily arises at the damages stage.  In the germinal case of Jones v Tsige this issue is discussed, with the Judge recognizing the where no pecuniary loss has been suffered, there are still nominal or moral damages available, intended as at least a symbolic recognition that a wrong has been suffered.  After surveying common law and statutory prescriptions for such situations, the court finally arrives [at paras 87 and 88] at the following formula for dealing with intrusions on seclusion:

In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls: 

1.   the nature, incidence and occasion of the defendant’s wrongful act;

2.   the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

3.   any relationship, whether domestic or otherwise, between the parties;

4.   any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5.   the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified.

California has taken a different approach to the issue.  On 26 September 2013, California Secretary of State Debra Bowen moved forward on a ballot initiative that would amend the California Constitution to recognize a right of privacy in personal information and an attendant presumption of harm when that right is breached.  If the proposal garners 807,615 qualifying signatures by Feb. 24, 2014, the proposition will be included on the November 2014 ballot. 

Regardless of HOW the issue is addressed, it is clear that something must be done.  Both personal privacy and a right of remedy to the courts for redress of violations of that privacy are inherently compromised if they are only actionable when demonstrable pecuniary harm has been suffered.