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Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for Jan 2003

Consent to use interviewees' name and photo in Quebec

The right to privacy in Quebec

Magazines distributed in the province of Quebec no doubt circulate under the shadow thrown by the 1998 Supreme Court of Canada decision in Aubry v. Éditions Vice-Versa Inc.. That case involved a damage award of $2,000 in favour of a 17-year-old teenager whose photograph was taken in a public place without her permission and subsequently published in an arts magazine. In granting judgment in favour of the girl, the Supreme Court balanced two rights, namely the magazine's freedom of expression and the girl's right to privacy which includes the ability to control the use of one's image.

Though the damage award was nominal, the Supreme Court decision created concern for magazines leery of being liable for using a photo without either the express written consent of the individual appearing in the photo or some other evidence demonstrating that the individual consented to the use of his or her image.

Court of Appeal clarifies right to privacy rules

In September 2002, the Quebec Court of Appeal clarified the scope of Aubry v. Éditions Vice-Versa Inc. by holding that when someone consents without any reserve to an interview with a journalist in a public location that person effectively renounces to any expectation of privacy and anonymity including the subsequent distribution of their image and their name.

In Le Journal du Quebec v. Marquis (200-09-002993-001) (September 4, 2002), the Quebec Court of Appeal held that a journalist who conducts an interview does not have to obtain a separate consent from the person interviewed before circulating the photo and the identity of the person interviewed once that person has consented to the initial interview. The decision, however, does not give journalists a carte blanche. In fact, the person interviewed must realize they are speaking with a journalist and the person must not impose any conditions on the subsequent use of their image or identity.

The Facts

In October 1995, two 17-year-old male students, members of an amateur hockey league, participated in a team initiation, one as a varsity member and the second as a recruit. Someone filmed the ceremony which included obscene and degrading acts. Two local newspapers obtained a copy of the videocassette and published articles in May 1996 without identifying any individual player.

In May 1996, the Journal de Quebec sent its own journalist as well as a photographer to interview members of the team who participated in the initiation. The journalist and the photographer went together to the local high school and, after having given a student $10 to identify members of the team, the journalist and the photographer met the two 17-year-old students.

Though the evidence was contradictory, the trial judge who listened to the witnesses at trial held that the two 17-year-olds realized they were in the presence of a journalist and photographer. The judge held that the two students responded spontaneously to the journalist's questions while he took notes in a note pad characteristic of the journalistic trade. During the 10-minute interview, the photographer circled about the students and the journalist taking no less than 14 photographs of the two students, the majority of which were taken within close range.

The journalist wrote an article which was published the next day, alongside a photo of the two students, with their full names and the facts of the initiation. Alleging a violation of their right to a private life recognized by the Quebec Charter of Human Rights and Freedoms, the two students each sued for $15,000 while their respective parents each sued for $5,000. After instituting the lawsuits, the two students turned 18 and continued the litigation in their own names.

Appeal Court Overturns Trial Judge

The trial judge granted judgment in favour of Plaintiffs and awarded damages to compensate for the injury to each student's reputation, dignity and honour as well as those of their parents. On appeal, two of the three judges of the Court of Appeal overturned the trial judge.

The majority of the Court of Appeal noted that the actual Declaration (Statement of Claim) filed in the Court sought damages only for the intentional and malicious violation of each Plaintiff's private life and made no mention of a claim for damages to reputation. The Quebec Charter of Human Rights and Freedoms provides, among other things, for two distinct rights namely:

- Safeguard of dignity, article 4 "Every person has a right to the safeguard of his dignity, honour and reputation."

- Respect for private life, article 5 "Every person has a right to respect for his private life."

The Court of Appeal observed that these two rights should not be confused. Though a single act may violate both someone's private life, dignity and their reputation, the Court required that a Plaintiff specifically and separately plead both those rights in his or her lawsuit. Otherwise, there would be an adjudication over and above what was requested in the original Court documents. As a result, the Court limited its review to any claim for breach of Plaintiffs' rights to a private life.

The key fact in the litigation came down to whether or not the two students, in consenting to the interview, had also consented to the distribution of the photos and their names. The trial judge held that there was no express consent given for the subsequent distribution of their image and their identity. The trial judge effectively said there were two types of consent: one for the interview and another for the publication of the information obtained during the interview.

The trial judge had held that the consent to the distribution of Plaintiffs' images and identities had to be "specific, clear and express" in order to justify a violation of someone's private life under article 5 of the Quebec Charter of Human Rights and Freedoms and article 35 of the Civil Code of Quebec which reads as follows:

Art. 35 Every person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person unless authorized by law.

The Court of Appeal held that the trial judge's requirement of two distinct consents was unjustified, saying that the trial judge wrongly relied on Aubry v. Éditions Vice-Versa Inc. In that case, the photographer had taken photographs of Plaintiff without her knowledge and used her image subsequently. In the present case, there was an express consent to the taking of the students' images.

The question to resolve consisted precisely as to whether or not the consent given to be interviewed also covered the subsequent use which the photograph made of the image. That situation was essentially different from that examined in Aubry v. Éditions Vice-Versa Inc. and therefore the Court of Appeal declined to apply the ruling in Aubry v. Éditions Vice-Versa Inc. to the facts in the hockey players' case.

The Court of Appeal held that the students' consent to the taking of a photograph did not necessarily mean they acquiesced to any use whatsoever. However, the Court of Appeal held that the trial judge was wrong to require a separate specific consent. Rather, in each case the Court has to evaluate the particular context in order to determine what is the real extent of the consent given at the time the image was taken.

The Court found that, on the facts, there was no justification in dividing the consent from the interview and photographs from the consent for the subsequent distribution because the consent given during the taking of the image also covered the subsequent diffusion. The Court held that a Court has to globally appreciate the context of each matter and it would be wrong to establish a water tight partition between the interview and the taking of the photographs on the one hand and the publication of the article and the photos on the other.

The Court of Appeal looked at the dictionary definitions of "interview" and, relying on those definitions of interview, held that, an interview with a journalist is distinguished from a conversation with any other person in that an interview, by its very nature, contemplates the publication or distribution of the content of the exchange.

While there was a question as to whether or not 17-year-old minors could grant consent, the Court held that the two Plaintiffs were sufficiently aware of the facts that their consent was validly given.

The Court of Appeal said it found it hard to conclude that Plaintiffs accepted to be interviewed and photographed by the journalist all the while having some expectation of anonymity and of discretion with regard to their identity and the content of what they revealed to the journalist and photographer. The newspaper was justified in alleging that in principle the consent to the interview included consent to the distribution. The Court held that: "The publication and the distribution are so characteristic of the very nature of the event that it falls on he who wishes to prevent in whole or in part the publicity or the distribution to set out his conditions before submitting to an interview" (translation, paragraph 38 of the judgment).

Interviewee has burden

This latter passage is important in that it suggests that the interviewee has a burden. That is, once the magazine establishes that the person realised they were being interviewed by a journalist, and consented to same, the person interviewed had to impose limits on the use of his or her image and identity, failing which no limits are presumed. Each case will depend on its facts and we will likely see cases which have to examine whether or not: conditions were in fact imposed by the interviewee, these conditions were accepted by the journalist; the conditions had to imposed before, during or after the interview or at least before publication.

Based on the facts of the two hockey students' case, the consent without any reserve to an interview with a journalist in a public location and in the presence of several persons led to the conclusion that there was a renunciation to any expectations of privacy and anonymity. Plaintiffs had renounced to their anonymity as well as their expectation of a privacy and therefore could not sue for the distribution of the photos and their identities.

Magazine journalists should clearly establish the context of the conversation they invite people to undertake and make sure that the person accepts and realises the consequences of the exchange. It is better to clarify the rules at the onset than risk unnecessary litigation over a misunderstanding.