We wrote recently about snooping on spouses (or soon-to-be former spouses), and how – needless to say – there are legal and ethical considerations surrounding that behaviour.
Still, human nature makes the temptation ever-present, and the widespread use of technology makes it easier to obtain information on another person than ever before. In a practical sense, this can include looking through a spouse’s personal emails or letters, or using their (known, or easily-guessed) passwords to hack into their computer accounts. Or if you are particularly determined, it may even involve secretly recording their telephone conversations, or installing spyware or key-logging software on their computer or cellphone.
Not surprisingly, in Canada there are well-established laws and principles that protect privacy; these can be applicable even between spouses.
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For example in a fairly recent Ontario Court of Appeal decision the court established the concept of an “intrusion on seclusion”, a legal wrong which essentially safeguards against invasion of privacy. In Jones v. Tsige, 2012 ONCA 32 (CanLII), a female bank employee named Tsige had been surreptitiously accessing the banking records of a fellow employee Jones – who happened to be in a common-law relationship with Tsige’s former husband. Over the course of four years, Tsige had looked into Jones’ banking records at least 174 times. The Ontario Court of Appeal confirmed that in the modern age – and in light of advancements in technology and the broad use and potential accessibility of personal data – the time has come to recognize the common law cause of action exists for invasion-of-privacy type tort of “intrusion on seclusion”.
This newly-recognized tort has been examined in subsequent cases, including the Family Law decision in Ludmer v. Ludmer, 2013 ONSC 784 (CanLII), where the separated husband accused the wife of “hacking” into his email account and reading his emails. In some of those emails the husband was discussing the matrimonial litigation with his father; others were between the husband and his lawyer. Although the court found that there was no true “hacking” (since the wife had always had the computer password), the court entertained the allegation that there could have been an actionable breach of the husband’s privacy in the circumstances.
Do you have questions about what’s permitted, in terms of private information-gathering? Contact us for a consultation.