The Problems with Protecting One’s Privacy by Means of Copyrights

In 2006, Jason Fortuny posted a fake advertisement on Craigslist by a supposed “female bondage enthusiast” who was looking for a “white or latin man … 2 give intense pain and discipline.”  The 178 responses, some of which had pictures attached, were then posted on an encyclopaedia website. Recently, a respondent sued Fortuny for damages suffered as a result of the humiliating prank, citing, amongst others, violations of his copyright.[1]

Generally, one thinks of copyrights as a means to protect one’s economic and moral rights as they relate to one’s work, and not, as in this case, to protect one’s privacy.    Copyright law is delving into an area typically inhabited by privacy provisions embedded in criminal and civil law.  Some troubling issues arise when copyright law is used to provide relief in cases that are not in its traditional realm because other areas of law may fail to remedy an obvious moral wrong.

The application of the Canadian Copyright Act to the Fortuny case becomes very muddled.  The question of infringement seems straightforward; the photographer is generally the owner of the photograph [2] and Fortuny’s use was an infringement [3].  The legal analysis gets messy when considering fair dealing, which is what Fortuny himself is claiming [4].  Fair dealing requires the use to fall into one of the enumerated categories in s.29 of the CCA.  CCH mandated for a “large and liberal interpretation” of the enumerated categories [5] but it is unclear whether Fortuny’s use can be included.  The use must also be fair [6].  Neither the purpose of the use by Fortuny nor the intended use by the victim was for financial gain; therefore, this case does not easily follow the CCH analysis for fairness.  The courts may focus on the true purpose of humiliation and find the use unfair or they may find that this unusual use does not correspond to any traditional unfair copyright uses.

The next issue relates to the purpose of copyright law to protect economic and moral rights.  Although the language of the CCA may apply to the case at hand, the Act’s breadth is being stretched beyond its intended purpose.  The economic provisions [7] are meant to protect an owner’s financial interest in their intellectual property which is not being compromised here; the work was not intended, ever used, nor ever capable of being used for financial gain.  As for moral rights [8], we again see that the language seems to apply though the underlying purpose may not.  The moral right of attribution is in relation to the work’s merit which is not at issue here.  One is also protected from being associated with a cause through one’s work.  In this case there is no such cause present.

Applying the CCA to sue Fortuny is not morally objectionable.  The law as a whole is being used to remedy a wrong.  However, blurring the division between areas of law may lead to unpredictable and inconsistent results as laws that were written with a specific purpose are transposed onto an alien scenario.


[2] Copyright Act, R.S.C. 1985, s.13, [CCA].
[3] Ibid, s.27.
[4] (This website has recently shut down).
[5] CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. No. 12 [51].
[6] Ibid, [50].
[7] CCA, supra s.3.
[8] CCA, supra s.14.