An Ottawa woman has won a lawsuit that could have profound implications on the right to privacy of people in the age of social media.

Basia Vanderveen, a communication strategy consultant, successfully sued in small claims court after a short video clip of her jogging was used in promotional video for a Westboro condominium project.

Distroscale

“It’s about the right to control one’s image,” said Paul Champ, Vanderveen’s lawyer. “We all have the right to enjoy some measure of privacy, even when we are in public places.

“In the age of social media, when people go to great length to curate their public images, the law has to recognize that the misuse of someone’s likeness or image by another constitutes a violation of privacy. The court agreed with us.”

Not surprisingly, the defendant, Waterbridge Media, has the exact opposite view of the decision, which it called a “gross over extension of the law.”

“In a day an age where everyone has a video camera in their pocket, when everyone has a camera in their pocket attached to their cellphone, it’s unbelievable that a ruling like this was made,” said Waterbridge president Brian Frank.

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“This is a ruling that does not belong in the year 2017.”

Vanderveen was videotaped some time during the summer or fall of 2014 as she was jogging along the Ottawa River in Westboro. The videographer worked for Waterbridge, which had been hired to shoot a promotional video for a Bridgeport condominium.

Vanderveen appears on screen for less than two seconds of the one-minute and 20-second video, in a section where the video is split into three panels showing Vanderveen jogging, a man cycling and a man drinking coffee. A friend of Vanderveen saw the video online and told her about it.

In her testimony, Vanderveen said she felt the video “blasted her image to the world without her consent or permission.”

Vanderveen had only recently taken up running after the birth of her children and testified that she thought the video made her look overweight and it caused her anxiety and discomfort.

Vanderveen testified she saw the camera and covered her face to show she didn’t want to be filmed, but the videographer continued anyway, tracking her movements with the camera. She complained to the condo company, which immediately took the video off its site, Champ said. Waterbridge Media, however, left the video online for a longer period before finally taking it down.

The video is no longer viewable online. Vanderveen declined to be photographed for this story.

“She was simply having a private jog along the river one morning and ended up being in a commercial without her consent,” Champ said.

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“They made the argument that if they don’t use someone’s image in a way that is embarrassing or if they don’t portray someone in an unflattering light — here it is just her jogging and it’s not inherently objectionable — that they should be allowed to use the footage.

“We argued that how someone sees themself is more important than how a third person sees them.”

Since taking up running in 2014, Vanderveen has gone on to compete in four Ironman triathlons, including two extreme triathlons, Champ said.

“She’s an incredibly fit person. And here’s this video — she looks fine in it — except that when she sees it, she doesn’t see herself. That’s the dignity aspect of privacy that’s protected in the law.”

Frank said it’s the first time in the company’s eight-year history that it’s received a complaint like Vanderveen’s. The decision will have a chilling effect on the media industry, he warned.

“It essentially means you’re not legally allowed to capture any public areas in video. It’s not just about whether the person is representing the brand you’re shooting for or you’re misrepresenting their endorsement of a product or service. If they’re visible at all, you can’t capture them. That’s really, really harmful to the industry.”

There are limits to the expectation of privacy. News organizations will still be able to shoot public scenes as part of their news coverage, Champ said. Nor would Vanderveen have had an expectation of privacy if the video had shown a large number of people together, such as in an organized race, he said.

Vanderveen was awarded $4,000 damages for breach of privacy, plus an additional $100, which is what Deputy Judge Roger Leclaire ruled she should have been paid for appearing in the film.

Waterbridge has 30 days to appeal the ruling. Frank said the company hasn’t decided what to do.