Ottawa jogger who wound up in an ad without her knowledge wins precedent-setting privacy fight

An Ottawa woman has successfully argued her privacy was breached when footage of her jogging in Westboro was used in a promotional condo advertisement in what a lawyer calls a precedent-setting case.

'We should all have a right over the control of our image'

An Ottawa woman has been awarded $4,100 in damages after a film crew shooting a video for a condo development recorded her jogging without her consent. (Avigator Thailand/Shutterstock)

An Ottawa lawyer says his client has set a precedent in Ontario by successfully arguing in court her privacy was violated after footage of her jogging in public was used for commercial purposes.

She was so upset and shocked that someone had used her image in a commercial.- Paul Champ, lawyer

Condo developer Colonnade BridgePort had contracted media production company Waterbridge Creative Media Inc. to film the Westboro neighbourhood in the summer of 2014 for a marketing video to promote an upcoming residential condo project.

During filming, Basia Vanderveen, a mother of two, was captured on camera jogging on a trail by the Sir John A. Macdonald Parkway and tried to shield her face, according to a Nov. 20 small claims court ruling.

It wasn't until a year later in 2015 that someone told her she was in the two-minute video for about two seconds.

"She was so upset and shocked that someone had used her image in a commercial," her defence lawyer, Paul Champ, said in an interview Monday.

Video caused 'discomfort and anxiety'

Vanderveen testified at trial that at the time of the recording she had started jogging to lose weight after the birth of her two children, and that she was upset the video "blasted her image to the world without her consent or permission," according to the court ruling.

She described herself as being "self-conscious" and that the "overweight pictures of her caused her discomfort and anxiety." The ruling noted she has since lost weight after training for multiple Ironman triathlons.

In an email on Oct. 1, 2015, she requested Waterbridge remove her from the video, but was told it would cost $400 to edit her out.

In the email exchange, Waterbridge said "media captured in a public space with no expectation of privacy and where persons are not defamed is standard in the industry."

The company took down the video in December of that year after her lawyer got involved. But Vanderveen had earlier worked with the Privacy Commissioner of Canada on resources for small businesses on how to protect personal information. She disagreed with the company's position on the privacy matter and wanted to set a precedent, according to her lawyer.

Invasion of privacy: judge

At trial, Waterbridge testified it wasn't the photographer's intention to capture individual people, rather the "environment, river, and geography." However, the judge didn't buy it.

"The photographer was not just filming a moving river, he or she was waiting for a runner to jog along the adjacent jogging trail to advertise the possibility of the particular activity in Westboro," Judge Roger Leclaire wrote in his judgment.

"The filming of Mme. Vanderveen's likeness was a deliberate and significant invasion of her privacy given its use in a commercial video," the judge added. 

Vanderveen was awarded $4,000 in damages for the privacy breach and $100 in "damages for appropriation of personality," which is an estimate for how much it would have cost the company to hire an actor for the jogging scene. 

Her lawyer said the case highlights an important development in Ontario's privacy laws and assures people they shouldn't worry about being filmed for commercial purposes in public spaces.

"This case shows that, no, you can't do that in Ontario," Champ said.

"The fundamental point is we should all have a right over the control of our image. And if someone is using your image for some commercial purpose, anyone would feel offended by that."

There are exceptions to the law in public spaces in which footage is allowed to be broadcast, such as for journalistic purposes or if the footage is primarily of a large crowd of people rather than a specific person, Champ added.