Teresa Scassa - Blog

Tuesday, 07 October 2014 14:10

Balancing Privacy and the Freedom of Expression: Quebec Court of Appeal OKs Pornographic Caricature

Written by  Teresa Scassa
Rate this item
(0 votes)

The Quebec Court of Appeal has released its decision in Trudeau c. AD4 Distribution Canada inc., a case that balances the freedom of expression with the protection of privacy and dignity. This is an increasingly important theme in privacy case law in Canada; it was at the heart of a recent Supreme Court of Canada decision, albeit in a different context.

In Trudeau, the appellant, Stéfanie Trudeau had launched a law suit against the defendant film company after they released a pornographic film that featured a caricature of her in her professional capacity as a Montreal police officer. She had sought an injunction to prevent the distribution of the film, as well as damages in the amount of $100,000. The film produced by the respondents was titled “728 Agente XXX”. It was described as a parody inspired by the conduct of police at the time of the 2012 Quebec student protests. Although the filmmakers did not use her name in the film, and did not hire an actress who resembled her, the character in the film wore her police badge number 728. The number was not chosen at random; the appellant had become notorious following the student protests. The Quebec Superior Court noted, in its decision, that Agent 728 had become famous almost overnight when a video of her pepper-spraying demonstrators circulated widely in both mainstream and social media. Her badge number was also featured a later point in time in a video shown on mainstream and social media that depicted her forcible arrest of a man caught drinking in public in the Plateau area of Montreal. She was at one point suspended from the police force and an internal inquiry was held.

Ms Trudeau claimed that the film violated her right to privacy and her dignity (protected under sections 4 and 5 of Quebec’s Charter of Human Rights and Freedoms), and that they had usurped her name and image in the making of the film. The trial judge had rejected these arguments. On September 12, 2014, the Quebec Court of Appeal upheld this decision. The Court of Appeal agreed with the trial judge that there had been no usurpation of the appellant’s name or image – her name was not used in the film, and the actress who portrayed agent 728 did not resemble her. Although her badge number was used, and although her badge number could be linked to her through the extensive media coverage of the events leading to her notoriety, the Quebec Court of Appeal agreed with the trial judge that this was not enough to give rise to liability. It had to be shown not just that there was a link, but that any link between the appellant and the film violated her right to privacy or her dignity. The trial judge had found that her badge number was not part of her private identity, but rather was part of her public persona as a law enforcement agent. As a result, the caricature or parody in the film was not about her personally, but about her public persona – one that had engaged in highly publicized and controversial acts. The Court of Appeal agreed that her actions as a police officer could legitimately be the object of caricature and critical comment. According to the Court, the right to make a parody such as the film in question falls within the respondents’ freedom of expression. The Court accepted that there are limits on the extent to which a public figure can be subject to parody, but that these limits were not exceeded in this case. Here, according to the Court, the ordinary citizen would not believe that it is the appellant herself that is depicted, in any personal way, but only an effigy. The court found the parody to be so unrealistic that it could not diminish the appellant, in her personal capacity, in the mind of the public.

The appellant also argued that the fact that the film was pornographic was itself a violation of her dignity. The Court of Appeal disagreed, noting that the case did not involve the use of an actual photograph of the appellant in a pornographic context without her consent. The Court confirmed that the pornographic nature of the film did not remove it from the category of parody or caricature – a form of commentary that is protected by the freedom of expression.


Login to post comments

Canadian Trademark Law

Published in 2015 by Lexis Nexis

Canadian Trademark Law 2d Edition

Buy on LexisNexis

Electronic Commerce and Internet Law in Canada, 2nd Edition

Published in 2012 by CCH Canadian Ltd.

Electronic Commerce and Internet Law in Canada

Buy on CCH Canadian

Intellectual Property for the 21st Century

Intellectual Property Law for the 21st Century:

Interdisciplinary Approaches

Purchase from Irwin Law