According to media report, Prince Harry has joined his wife Meghan Markle in North Saanich (Steve Parsons/pool photo via AP, File)

Lawyer lays out legalities for photography in public after paparazzi descend on North Saanich

British photographers were hiding in bushes before taking Markle’s pictures

A Victoria lawyer says existing Canadian case law offers little guidance when it comes to the legality of photographing and filming celebrities like Prince Harry and his wife Meghan Markle.

The couple said to be residing in North Saanich have threatened legal action against British paparazzi after they recently took pictures of Markle while taking a walk in North Saanich.

“The law isn’t that well tested in Canada on those issues,” said Bruce Hallsor, a Victoria-based lawyer. Hallsor said three aspects come into the play: the provincial privacy act, which broadly prohibits unreasonable violations of personal privacy; common law (trespassing and privacy); and criminal law (harassment).

“…the rules are essentially these,” he said. “It is an invasion of privacy to photograph or surveil somebody in their home, which would include a fenced-in or private outdoor space.”

Examples of exceptions to this broad rule include inviting attention while standing in a yard or even a window, he said. In other words, private property comes with a presumption of privacy, with some exceptions.

RELATED: Four things ‘not’ to do if you run into Prince Harry and Meghan in B.C.

RELATED: Local Monarchist says Saanich Peninsula would be a ‘great place’ for Prince Harry and Meghan Markle

“On public property, the presumption would be the opposite, that you don’t have a reasonable expectation of privacy when you are in a public place, whether that is out shopping, at a store, whether you are going to the theatre, whether you are in a park. The presumption would be that you are in a public place and you are aware that somebody might take your photograph or watch you or come up and talk to you.”

While harassment is a criminal matter, the bar for it is “pretty high” in Canada, said Hallsor. “I’m not a UK lawyer, but there is a much more codified set of rules there for paparazzi about harassment, but that doesn’t exist here. It has never been adopted. But if you are stalking somebody, interfering with their daily routine, causing a safety concern — those would be things that would lead you to look at harassment.”

Ultimately, harassment revolves around the question of intent, said Hallsor. “Are you deliberately harming a person, knowingly causing mental distress, or causing physical safety issues? That is a pretty high test.”

Prince Harry has in the past spoken of “harassment” by media especially the notorious British yellow-sheets. His mother, Prince Diana, died along with her partner Dodi Fayed on Aug. 31, 1997 in car crash while paparazzi were pursuing them.

RELATED: Prince Harry reunites with Meghan and Archie in Victoria

RELATED: Prince Harry: ‘Powerful media’ is why he’s stepping away

Perhaps the defining case in Canadian law around these issues is the 1998 case of the Aubry v. Éditions Vice-Versa as ruled by the Supreme Court of Canada. The case revolves around a female Quebec celebrity, who sued a magazine for damages after a photographer had taken a picture of her without her consent in public.

The majority ruling in favour of woman found that the “artistic expression of the photograph cannot justify the infringement of the right to privacy it entails.”

“An artist’s right to publish his or her work is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work,” it reads. “It has not been shown that the public’s interest in seeing this photograph is predominant.”

Writing a separate dissenting opinion, chief justice Antonio Lamer argued that the “public’s right to information, supported by freedom of expression, places limits on the right to respect for one’s private life in certain circumstances.”

He acknowledged that the publication of the photo without the woman’s permission constituted a violation of her privacy , and chided the photographer for failing to secure permission, but also questioned lower court efforts to limit the notion of public interest to the right to receive “socially useful” information.

RELATED: Anti-tax group calls for no federal funds for Prince Harry, Meghan Markle while in Canada

He acknowledged that the publication of the photo without the woman’s permission constituted a violation of her privacy, and chided the photographer for failing to secure permission, but also questioned lower court efforts to limit the notion of public interest to the right to receive “socially useful” information.

Hallsor is not sure how relevant that case might be for the royal couple.

“I don’t know how directly related it is to potential situation with [Prince Harry and Megan Markle],” he said. “I really think any case they bring forward about the things that they have complained about so far would really be a case of first instance in Canada. A lot of it might come down to how sympathetic [a] judge is with their situation or not.”

The provincial privacy act comes with a media proviso by saying that the “publication of a matter is not a violation of privacy if the matter published was of public interest or was fair comment on a matter of public interest.”

This raises the obvious question of whether Markle’s stroll through North Saanich Horth Hill Park was a matter of public interest or fair comment.

“I don’t think she has a reasonable expectation for privacy, if she is walking through a public park,” said Hallsor. “I understand that there is an accusation that somebody was hiding in the bush. That kind of behaviour, if it was systemic, might lead to harassment or something like it. But my quick take on it is it would be very difficult to prosecute for that.”

RELATED: Royal deal clears way for Harry, Meghan part-time Canada move

As William Kowalski of PEN Canada, the national branch of Poets, Playwrights, Editors, Essayists, Novelists, an international advocacy group for writers, has written, it is not a crime in Canada to photograph or film in any public place, or in any private place to which the public is admitted, then publish those pictures and films, subject to very limited constraints. The same broad principle also applies when it comes to taking pictures or filming in any government site other than areas with restricted access.


Like us on Facebook and follow @wolfgang_depner

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Volunteers collect and deliver pet food across Greater Victoria during COVID-19 pandemic

Richard Hawkes has ‘food coming out of his ears’ and would love to help those in need

COVID-19 has been impacting Canadian economy since January

But full effects of pandemic won’t be known for months

Cycling advocates call for more pedestrian space, temporary bike lanes during pandemic

An increase in foot traffic means transportation needs to be prioritized, advocates say

West Shore RCMP seizes illegal drugs, imitation handguns in Colwood

One man and one woman arrested for weapons-related offences

Alistair MacGregor addresses federal response to COVID-19

Cowichan-Malahat-Langford MP spoke to constituents via Facebook on Wednesday

‘We will get through this’: B.C. sees new COVID-19 death, but 57% have recovered

A total of 1,066 people have tested positive for the novel coronavirus

POLL: Will you be able to make your rent or mortgage payment this month?

With the COVID-19 delivering a devastating blow to the global economy, and… Continue reading

Couple celebrates 61st anniversary through Vancouver Island seniors’ home window

Frank and Rena Phillips marked occasion at Nanaimo Seniors Village this week while social distancing

A look at some of the B.C. inventors creating life-saving tools in fight against COVID-19

Groups across B.C. are working together to create what they hope will help people affected by the pandemic

Association launches French-language games, online tools for families learning at home

Games, culture and vocabulary included in new virtual resources

‘There can be no ambiguity’: Travellers brought home to B.C. must self-isolate

Health Minister Adrian Dix said the mandatory isolation must be abided by

Belle from ‘Beauty and the Beast’ entertains home-bound kids in Cowichan Bay

Alora Killam, 16, played the part in musical two years ago

55+ BC Games cancelled amid COVID-19 concerns

Greater Victoria set to host 2021 event

BC Hydro offers three-month bill ‘holiday’ for those affected by COVID-19

Industrial customers can defer half of their power bills

Most Read