Thanks to social media, it is not difficult to achieve your claim to fame. However, it also is not difficult to receive unwanted attention or fame.
Social media platforms, such as Instagram and Snapchat have modernized the concept of photo albums by creating an online platform to share, send and post pictures. Snapchat has taken one step further by removing the fear of having unwanted pictures going viral on the internet, where the picture is seen for a few seconds then vanishes into thin air. Great feature, right? Although Snapchat embodies a temporary glimpse at user’s photos and videos, the app, along with many other apps, still raises privacy concerns.
The Wests vs. Swift
The most recent privacy concern, brought to light by pop culture moguls Kim Kardashian West and Kanye West, includes a non-consensual release of a recorded phone call between kanye West and Taylor Swift in regards to Swift approving controversial lyrics of his infamous song “Famous”. The recorded phone call was made public to the world in a ‘snap’ by Kim Kardashian.
The video has caused a frenzy in the Wests vs Swift war, with the Wests scoring brownie points over Swift thanks to the ‘snap’. However, it may be Swift who has the last laugh. Swift, who has a history of taking legal action against former friends and acquaintances, may be at the forefront of a number of potential legal claims against the Wests.
The Breach of Privacy
Two (2) potential claims Swift may have are:
- defamation/character assassination; and
- illegal use of a recorded phone call.
For a claim of defamation/character assassination, Swift must prove that the Wests intended to intentionally hurt her with a knowingly false statement. This onus is quite difficult to prove. For a claim of illegal use of a recorded phone call, the parties must first determine what state the phone call was recorded in. For example, California law states that all-party consent is required for the release of any private communications.
This publicly-known dispute is just a glimpse into the possible privacy breaches that can take place on social media platforms, such as Snapchat. NBA stars have also fallen victim to breaches of privacy, where women have ‘snapped’ star players, such as James Harden, in bed beside them.
Privacy Law
Snapchat is not legally responsible for these potential breaches of privacy, since it is the actual recording of the phone call or snap of the photo that is the breach, not the dissemination of the sensitive information.
Technological innovation has prompted Canadian courts to evolve privacy laws to a more clear rule on the tort of privacy. In the 2012 case, Jones v Tsige, the Ontario Court of Appeal stated that a right of action for ‘intrusion based on seclusion’ should be recognized in Ontario. The judge referenced the adoption of such privacy laws by US and English courts, where a tort of invasion of privacy exists if:
(i) there is an unauthorized intrusion;
(ii) the intrusion is highly offensive to the reasonable person;
(iii) the matter intruded upon was private; and
(iv) the intrusion caused anguish and suffering.
With the rules laid out above, it may be difficult for Swift to claim a tort of privacy. The first factor is clearly satisfied, but her legal counsel would have to make a strong argument to satisfy the three additional factors.
Conclusion
With the growth of platforms that provide spotlight to potential breaches of privacy, judiciary and legislature will attempt to keep up with protecting victims’ rights to privacy, whether it is violated through a breach of data release (which will be addressed in the new Digital Privacy Act, or an invasion of privacy. For now, Taylor’s snapchat war may need to be resolved through the power of her PR agents.
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