My Home Is My Castle – Unless You’re Making Art

Thinking over the recent finding that a photographer who took one year’s worth of pictures of the family who lived in the building across from him through their window.  Done surreptitiously, no consent or knowledge of the photography taking place – in fact, the Fosters only found out about the series when Arne Svenson exhibited “The Neighbours” in a local gallery and they were recognized.

Seems simple – your home is your castle, this guy was taking pictures of them in their private home without their knowledge or consent – but the Appellate Court found that this did not constitute either stalking or an invasion of privacy.  Why?  Because it is “art”.

But “the invasion of privacy of one’s home that took place here is not actionable ... because the defendant’s use of the images in question constituted art work” and were not used for advertising or in trade.

Is an invasion of privacy determined  by the uses to which the products of that invasion are put?  I’m willing to concede that the use to which the product of an invasion of privacy are put could/should certainly be factored in to a determination of damages or remedy.  But surely the invasion and the uses to which its product are put should be addressed separately?

This is a US case, so it’s hard to know how a Canadian court would deal with the same situation.

I would hope that the issues would be dealt with separately – first a consideration of whether there has been an invasion of privacy in collecting the information, and second an examination of the use/disclosure of the information. 

In examining the collection of information – the year of taking candid photos of their life inside the apartment – I would hope that the focus of the inquiry would be on the expectation of privacy of the Foster family.  There can be no question that they believed themselves to be in the privacy of their own home – the surreptitious photography of their actions is unquestionably outside their expectations.  We might even look to the Supreme Court of Canada’s approach in R v Clarke for clarity.  In that case, which dealt with a man masturbating at the window of his illuminated living room, the court explored whether acts committed in one’s own home could constitute an act “in a public place” by reason of visibility.  The Supreme Court of Canada concluded that a “public place” was to be defined as “any place to which the public have access as of right or by invitation, express or implied”.  “Access” means “the right or opportunity to reach or use or visit” and not the ability of those who are neither entitled nor invited to enter a place to see or hear from the outside, through uncovered windows or open doors, what is transpiring within.  Regardless of whether the photographer was able to see inside the Fosters’ apartment or not, it is clearly a private space within which he intruded.