2014 QCCQ 9394, 2014 QCCQ 9394

Unofficial English Translation Pia Grillo c. Google inc. 2014 QCCQ 9394 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No: 500-32-130991-112 DATE: October 3, 2014 ______________________________________________________________________ PRESIDED BY THE HONOU RABLE ALAIN BREAULT, J.C.Q. ______________________________________________________________________ MARIA PIA GRILLO …, Montreal, Quebec … Plaintiff v. GOOGLE INC. 181 Bay Street Suite 2100 Toronto, Ontario M5J 2T3 Attention : Mr.

Colin McKay 440 Laurier Avenue West Ottawa, Ontario K1R 7X6 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff, Maria Pia Grillo (“Ms.

Grillo” or the “plaintiff”), claims damages totalling $7,000 from Google Inc. (“Google” or the “defendant”), after it posted a photo of her house on “Google Maps”. [ 2 ] The plaintiff appears in the photo without her consent in what she considers an inappropriate manner, as does her automobile, the licence plate of which being in no way camouflaged or blurred. For the plaintiff, this is a blatant violation of her right to privacy and the protection of her image and dignity. [ 3 ] The defendant disputes the claim on several grounds.

BACKGROUND [ 4 ] In 2009, the plaintiff was working in Montreal for a well-known bank. [ 5 ] On or around May 8, 2009, she was at home on her day off. Ms. Grillo explains that the house in which she lives is located in a quiet neighbourhood, a “private area” as she describes it. She specifies that she places a great deal of importance on this aspect of her personal life.

[ 6 ] Over the course of the day, she decided to sit outside the house for a brief moment. She sat down on the first step of the staircase leading to the main entrance of her house. She took advantage of this break to check her email on her smartphone. [ 7 ] Shortly after, she saw an automobile bearing the Google name (the “Google car”) passing by in front of her house. The automobile was equipped with a panoramic camera on its roof. [ 8 ] The plaintiff did not pay any particular attention to it at the time. [ 9 ] Five months later, on October 9, 2009, Ms.

Grillo, while at work, decided to consult the “Google Maps” website, operated by the defendant. She was curious to see how her house appeared. She clicked on the “Street View” tab. [ 10 ] She claims to have been deeply shocked by what she saw. [ 11 ] To her great surprise, she realized that she was visible in the photo. Even though her face was blurred, she was easily recognizable, she says, at least within her entourage and among her colleagues.

In the photo, she appears outside her house, seated on the first step of the staircase, barefoot, wearing a sleeveless tank top with her breasts partly exposed. [ 12 ] Ms. Grillo noticed that her automobile was also visible in the photo and that no attempt had been made to conceal its licence plate. The postal address of her house was also visible. [ 13 ] The plaintiff was deeply disturbed by this situation.

She asserts that following the appearance of this photo on the defendant’s website, she has been subjected to mockery and disrespectful comments, particularly in regard to her breasts. [ 14 ] That same day, the plaintiff filed a complaint with the Office of the Privacy Commissioner of Canada (the “Commissioner”).

Afterwards, in an attempt to follow one of the Commissioner’s recommendations, she tried to remove or have removed the troubling or inappropriate images by clicking on the button set up for this purpose by Google (“Report inappropriate image”). [ 15 ] She testifies that she was unsuccessful in getting anything accomplished on her own, let alone obtaining an answer from Google. The process set out or described did not work or did not seem to allow any communication between the user and the defendant. [ 16 ] A few days or weeks later, Ms. Grillo sent a letter directly to Google.

The Court finds it useful to reproduce the essential points of this letter: Several weeks ago, I had the unfortunate displeasure of finding that I appear on your "Street View" service. To be more specific, I am shown sitting on the front steps of my house, my front door open and my vehicle parked in my driveway. What surprised me the most was that the Iisence plate on my truc was not blurred out. I am appalled that a corporation of your magnitude is so terribly unaware of local privacy laws. I have informed myself as to my rights concerning this situation through the office of the privacy commissionars of Canada.

Under the law my lisence plate should not appear. Moreover, from a safety and security standpoint, the information shown constitutes a total violation. This puts me, my house, my vehicule and my family members that I live with at the mercy of potential predators. I feel very vulnerable knowing that the information is available to anyone with internet access. The damage has been done. I formally request the removal of my lisence plate information immediately.

You have 30 days from today to comply. furthermore, for the time that this personal private information of mine has been available to the general public I expect to be adequately compensated by Google Inc. … [ sic ] [ 17 ] The plaintiff explains that the letter, addressed to Ms. Gane Horvath (Senior privacy counsel), was sent to two places: New York Avenue (at the address indicated in the letter) in Washington D.C., and Google’s head office in Mountain View, California. [ 18 ] The letter, however, remained unanswered. [ 19 ] The defendant claims that it never received this letter.

It adds, moreover, that searches conducted within the company to locate it have been unsuccessful. [ 20 ] The Court notes that the letter is not dated and does not appear to have been sent by registered mail. [ 21 ] On June 8, 2011, a little over two years after the appearance of the litigious photo on the “Google Maps” website, the plaintiff, through her attorney, sent a demand letter to Google.

Not only did she claim damages, which she assessed at $45,000, but she also demanded that Google “immediatly and permanently remove, block, blur, or otherwise make unidentifiable all photographs of our client, her breast, her car's license plate and her civic address” [ sic ]. [ 22 ] On June 23, 2011, Ms. Grillo was informed by fax sent to her lawyers by the defendant that “[p]ursuant to your request, we have blurred all imagery that was appearing at this address”. The documentary evidence confirms the accuracy of Google’s representations. [ 23 ] In her lawsuit, Ms.

Grillo alleges that the compensation to which she considers herself entitled is still $45,000. To respect the jurisdiction of the Court of Quebec sitting in the Small Claims Division, however, she has reduced her claim to $7,000 and waived her right to the difference. [ 24 ] The claim is broken down as follows: 5– Considering the situation, the Plaintiff claims from the Defendant;

- Mockeries, derisions, disrespectful ans sexualy related comments in relation with the photographs : 15,000.00$ - Dignity, intergrity, image, right to anonymity, right to have a private life : 15,000.00$ - nuisance and inconvenient :15,000.00$ 7- The Plaintiff reduce his claims to 7000,00$. [ sic ] [ 25 ] The plaintiff alleges, among other things, that her image and reputation were severely damaged at work as a result of the photo. She states that she has been the subject of mockery and disrespectful comments by her colleagues.

She decided to leave her job after having worked there for almost five and a half years. [ 26 ] Ms. Grillo specifies that before leaving the bank definitively, she was on sick leave for approximately two years. She became depressed and had to take medication for at least eight months. She received counselling from a psychologist. [ 27 ] She insists that she is a reserved person who values her privacy and prefers to remain anonymous. She adds that she never uses social networking websites and that the house in which she lives is in a [ translation ] “private neighbourhood”.

For her, the right to privacy and anonymity are highly important values. [ 28 ] Google disputes the claim on several grounds. [ 29 ] First, its representative explain that Google Street View is a totally free online service.

Google provides it to Internet users who wish to virtually visit or view various places or things from the street (restaurants, shopping centres, historic sites, hotel complexes, etc.) on all continents and in many countries, including Canada, the United States, Japan, and Australia. [ 30 ] Moreover, it states that the photo-taking or imaging process is done publicly (announcements are made beforehand in the neighbourhoods or areas at issue) with respect for the privacy rights of those who may be affected and in no way seeks to embarrass them in any manner whatsoever. [ 31 ] Several methods are used or suggested to protect against or avoid unwanted privacy breaches.

For example, Google automatically blurs people’s faces and licence plates (using an automated detection process) and allows those who wish to do so to use a tab to communicate directly with the company to require it to remove or blur an image. [ 32 ] The following excerpts from its written defence provide a good

summary of the evidence and principal defences raised by Google: … 6. Google Maps is a free online map service provided by Google. This map service is provided by Google to millions of users around the world. It allows users to view maps on their Internet browsers. Among other things, Google Maps can be used to find businesses, landmarks, tourist attractions and other points of interest as well as contact information and driving directions. 7.

Google Street View ( "Street View") is a free service in Google Maps that allows users to view and explore at street level, among other things, landmarks, historic sites, potential travel destinations, commercial centres, restaurants, and neighbourhoods on seven (7) continents and in dozens of countries around the world, including Canada, the United States, Mexico, Japan, South Korea and Australia. 8. Millions of users around the world use Street View and have an interest in exploring the locations and places that are accessible on Street View. 9.

Street View contains imagery from public roads that is no different from what a person might see driving or walking down the street. Street View displays images that are taken from a fleet of specially adapted and, as Plaintiff has admitted, easily identifiable vehicles. The Google logo is affixed on its Street View vehicles and these vehicles are equipped with a number of large and very prominent directional cameras for 360 degree views. Attached hereto as Exhibit D-1 is an image of a Street View vehicle that is similar to the one that look the imagery filed as Exhibit P-1. 10.

The imagery in Street View is for the legitimate information of the public and is protected by the public's interest in and right to information as protected by the right to freedom of expression. … 15. The operation of Street View in Montreal (and various other Canadian cities) was reported in the press and on the Internet in or around May 2009. The images taken by Google's vehicles in Montreal were first displayed on Street View on or around October 7, 2009. 16.

As appears from the letter filed as Exhibit P-4, Plaintiff was fully aware that she was being photographed by the Google vehicle and, according to Plaintiff's allegations, Plaintiff waited for five (5) months thereafter, before taking any position in respect thereto. 17. Plaintiff alleges in the Application (see paragraph 2) that she used Street View to view her residence "[o]n or around October 9, 2009". This allegation is contradicted by the statement in Exhibit P-4 to the effect that Plaintiff sent the letter filed as Exhibit P-3, to Google, "on or about October 11, 2009".

The undated letter files as Exhibit P-3, which was, according to Exhibit P-4, sent on or around October 11, 2009, begins with " Several Weeks ago, I had the unfortunate displeasure of finding that I appear on your Street View "Service" [our underlining]. 18. Moreover, and under reserve of Google's position as set out above, it should be noted that nowhere in the letter filed as Exhibit P-3

does Plaintiff refer to any alleged "mockeries, derisions, disreaspectful ans [ sic ] sexually related comments in relation with the photographs" which are alleged in paagraph 5 (first bullet) of the Application. In addition, nowhere in Exhibit P-3 does Plaintiff ask that the image of the person in Exhibit P-1 be removed. Indeed, the only request made by Plaintiff in the letter filed as Exhibit P-3 was the removal of license plate information. 19.

Almost two (2) years after Plaintiff first allegedly used Street View to view the Address and discovered the impugned images, by letter dated June 8, 2011 (filed as Exhibit P-4 to the Application). Plaintiff, through her attorney, asked Google to block, blur or remove all images of Plaintiff, her civic address and license plate from Street View.

Plaintiff notified Google of alleged "mockeries, derisions, disrespectful and sexually related comments" for the first time in the letter of June 8, 2011. … [ 33 ] Google insists that, as soon as it received the plaintiff’s demand letter – the only letter or communication it claims to have received from Ms. Grillo – it immediately blurred out all the images appearing on the photo. [ 34 ] In the alternative, it claims that the evidence adduced in no way justifies the amount of damages sought.

In particular, it is of the view that the plaintiff did not submit convincing evidence to establish a causal link between the damages she claims to have suffered and the dissemination of the photo. ANALYSIS AND REASONS [ 35 ] The dispute between the parties, which involves no governmental authority, agent or representative, must be decided on the basis of the legal rules and principles set out in the Civil Code of Québec ( “C.C.Q.”) and the Charter of human rights and freedoms [1] (“ Charter ”). 1.

The applicable legal rules [ 36 ] The right to privacy and one’s image is set out in several provisions of the C.C.Q.: 3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. 35. Every person has a right to the respect of his reputation and privacy. No one may invade the privacy of a person without the consent of the person unless authorized by law. 36.

The following acts, in particular, may be considered as invasions of the privacy of a person: (1) entering or taking anything in his dwelling; (2) intentionally intercepting or using his private communications; (3) appropriating or using his image or voice while he is in private premises; (4) keeping his private life under observation by any means; (5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public; (6) using his correspondence, manuscripts or other personal documents. [Emphasis added.] [ 37 ] Moreover, the Charter contains several provisions that are relevant to the dispute between the parties: 3.

Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. 4. Every person has a right to the safeguard of his dignity, honour and reputation. 5. Every person has a right to respect for his private life. 9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law. 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. [ 38 ] The case law and legal commentary indicate that the protection of a person’s image is related to respect for his or her private life and, in certain cases, the protection of his or her dignity and rights to his or her honour and reputation. [2] The right to one’s image falls within personality rights and is generally considered to be an element of the right to privacy.

[39] In Aubry v. Éditions Vice-Versa inc,[3] the Supreme Court noted: 51 ... In our view, the right to one’s image, which has an extrapatrimonial and a patrimonial aspect, is an element of the right to privacyunder s. 5 of the Quebec Charter. This is consistent with the liberal

interpretation given to the concept of privacy in the recent decisionGodbout v. Longueuil (City), (SCC), [1997] 3 S.C.R. 844, and in past judgments of this Court. See R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 427. … 53 Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses aprotected right to his or her image. This right arises when the subject is recognizable.

There is, thus, an infringement of the person’s rightto his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified. SeeField v. United Amusement Corp. 54 The right to respect for one’s private life should not be confused with the right to one’s honour and reputation under s. 4 of theQuebec Charter even though, in certain cases, wrongful publication of an image may in itself result in an injury to one’s honour andreputation.

Since every person is entitled to protection of his or her privacy, and since the person’s image is protected accordingly, it ispossible for the rights inherent in the protection of privacy to be infringed even though the published image is in no way reprehensibleand has in no way injured the person’s reputation. In the case at bar, the judges at trial and on appeal found that the photograph was in noway reprehensible and did not injure the respondent’s honour or reputation.

The Court of Appeal also found that the manner in which thephotograph was juxtaposed with the text did not make it possible to associate the two elements and that, at any rate, the text was seriousand not open to ridicule. [References omitted) [40] It is clear from these excerpts that the image of a person while in a private place may not be captured, let alone disseminated,without his or her consent. [41] Moreover, the image of a person photographed while in a public place may not be disseminated without his or her consent,express or implied, if he or she is recognizable, unless the public’s right to information justifies reproducing or disseminating the imageor, in certain cases, if the person is merely a secondary element to a legitimately photographed public place or event.[4] [42] Under both Quebec and Canadian law, freedom of expression and the public’s right to information do not necessarily takeprecedence over the other civil rights set out in the Canadian Charter of Rights and Freedoms and the Charter of human rights andfreedoms.

Freedom of expression does not take precedence over the other fundamental rights, because, by definition, public freedoms inCanada, are not ranked in any kind of hierarchy.[5] [43] To decide whether a right or freedom needlessly or disproportionately encroaches upon one or more other fundamental rights orfreedoms, a balancing exercise must be conducted in the context of each case. The following passage from Lamer J.’s (dissenting)judgment in Aubry provides a good

summary: 24 I do not doubt that freedom of expression provides the appellants with powerful arguments to the effect that they acted reasonably.However, as s. 9.1 of the Quebec Charter provides, rights and freedoms must be exercised in relation to each other, with proper regardfor public order, democratic values and general well-being (see also Syndicat des communications graphiques local 41-M v. Journal deMontréal, (C.A.), at p. 458; Towner v. Constructions H. Rodrigue inc., (Sup. Ct.), at pp. 382-83). Thus, the rights of the appellants andthe respondent must be harmonized in the facts of the case.

The concept of the public interest is intended to play this role in mattersinvolving the right to one’s image as in the case of the right to one’s honour and reputation. This rule should now be examined. [References omitted.] [44] In the present case, three essential questions must be analyzed and answered to resolve the dispute between the parties: (

a) Was the plaintiff in a public or private place when her image was captured? (

b) Was she actually recognizable when the photo of her house was published on the website operated by Google? (

c) Was the dissemination of her image justified by the public’s right to information? 2. Application of the legal principles to this case [45] The defendant submits that the image of Ms. Grillo and her house was taken while she was not in a private place.

It claims thatit was taken while its employee was travelling on a public street, in an automobile clearly identified with the name “Google”. [46] It states that the image it published, which was captured from a public place, is exactly the same as that which any member ofthe public, whether an immediate neighbour or a mere passerby, would have had access to on that day if travelling in front of or near theplaintiff’s house at the same moment. [47] The distinction between public and private places is usually made in regard to their material or territorial features.

This approachis not always sufficient, however, to correctly determine the scope of protection conferred by the Civil Code of Québec and the Charter.Other criteria must also be considered. [48] According to the author Sylvain Bourassa: [translation]

The delimitation of this sphere of a person’s private life is generally seen as based on the dichotomy between that which is private and that which is public. It is accomplished through an analysis of all the circumstances at issue, and, more particularly, the identification of the person, the nature of that person’s activities, and the place in which those activities take place.

It is connected to the assessment of the reasonable expectations a person may have of protecting himself or herself from the interference of others. [6] [ 49 ] A person who is no longer in a private place according to the material or generally understood meaning of that expression is not necessarily or in all respects in a public place, such that, by this fact alone, his or her image may be used without restriction or limitation. [ 50 ] For example, it is difficult to conceive that people walking in the parking lot of a hospital or on the grounds of a health and wellness centre or nursing home no longer benefit from any protection of their private lives or images merely because they may be visible from a public street. [ 51 ] In the present case, the Court does not accept the argument that because the plaintiff was sitting on a step outside her house and was thus visible from the public street, she had by this fact alone necessarily or tacitly renounced her right to the protection of her private life and image. [ 52 ] The uncontradicted evidence indicates that the plaintiff lives in an area that she describes as [translation ] “private”, one which, according to her testimony, there is little activity.

The neighbourhood in which the plaintiff lives is characterized by its privacy, upon which she places great importance. It is an essential aspect of her personal life. [ 53 ] Moreover, the plaintiff was not participating in a public activity. She was on her day off at home, a place where in principle intrusions are not permitted under Canadian or Quebec law.

She was not expecting that anyone would in any manner [translation ] “invite themselves” to her home without her consent. [ 54 ] All of these circumstances lead the Court to conclude that even though she was sitting on a step outside her house and was visible from a street on which the public could travel freely, the plaintiff was entitled to continue to expect that her private life and image would remain protected and respected.

In principle, her consent was required prior to taking and disseminating her photo. [ 55 ] Google submits that the plaintiff did not suffer any real prejudice because it became impossible or at least very difficult to identify her as a result of the blurring of her face. [ 56 ] The Court is of the opinion, however, that a person does not become unrecognizable merely because his or her face is blurred. Other information or data in the image may also lead to his or her identification.

The Court agrees with the European approach [7] whereby this other information or data must also be considered to be personal information. [ 57 ] In the present case, identifying the plaintiff was even easier as the postal address of her house and the licence plate of her automobile were not blurred or camouflaged. Google acknowledges that this was an error on its part. Usually, it says, such information is blurred. [ 58 ] The Court concludes that, even though her face was blurred, the plaintiff remained recognizable, certainly among her entourage and her colleagues at least.

Therefore, simply from the perspective of the right to anonymity that the plaintiff claims, the protection to which she was entitled was not respected by the defendant. [ 59 ] Finally, the defendant had the burden of proving that the dissemination of the plaintiff’s image was justified by the public interest or the public’s right to information. [ 60 ] This was not done in the present case.

The elements invoked do not convince the Court that the protection of the plaintiff’s private life and her image, to which she was entitled, should be set aside for these reasons. [ 61 ] In regard to the public interest, the Supreme Court stated the following in Aubry : [8] 58 The public interest so defined is thus conclusive in certain cases. The balancing of the rights in question depends both on the nature of the information and on the situation of those concerned. This is a question that depends on the context.

Thus, it is generally recognized that certain aspects of the private life of a person who is engaged in a public activity or has acquired a certain notoriety can become matters of public interest. This is true, in particular, of artists and politicians, but also, more generally, of all those whose professional success depends on public opinion.

There are also cases where a previously unknown individual is called on to play a high - profile role in a matter within the public domain, such as an important trial, a major economic activity having an impact on the use of public funds, or an activity involving public safety. ... [ 62 ] Under Canadian and Quebec law, contrary to American law, the fact that the publication or dissemination of an image is socially useful is not sufficient to justify or excuse a violation of the right to privacy or to one’s image. That is not the test our courts have adopted.

This is what the Supreme Court held in Aubry : [9] 61 In the United States, freedom of expression and public information prevail over the right to privacy except where the information’s sole purpose is commercial. We agree with the intervener that this notion of “socially useful” refers only to the fact that the information in question has an economic, political, artistic, cultural, sporting or other value. A photograph of a single person can be “socially useful” because it serves to illustrate a theme. That does not make its publication acceptable, however, if it infringes the right to privacy.

We do not consider it appropriate to adopt the notion of “socially useful” for the purposes of legal analysis. The distinction based on commercial purpose is inconsistent with s. 9.1 of the Quebec Charter . Only one question arises, namely the balancing of the rights at issue. It must, therefore, be decided whether the public’s right to information can justify dissemination of a photograph taken without authorization. [ 63 ] In the present case, Google did not demonstrate that there is a public interest in seeing the image of the plaintiff that prevails over the protection to which she was entitled.

[ 64 ] The informational usefulness (or value) of the services performed by Google is not sufficiently determinative or dominant to justify the infringement of the personality rights at issue or a violation of either of them. Likewise, the fact that the search engine or the services offered by Google are free is neither an admissible excuse nor a relevant factor under Canadian and Quebec law. [ 65 ] In view of the evidence submitted by the parties, the Court concludes that the capture and dissemination of Ms.

Grillo’s image constituted a violation of her private life and her image. [ 66 ] The uncontradicted evidence reveals that the plaintiff’s image was taken without her consent, while she was on her property, and then disseminated, although she was in no way participating in a public activity and is very concerned with protecting the private nature of her life.

By appropriating and using the plaintiff’s image in this context, Google committed a fault under Quebec civil law. [ 67 ] The following comments taken from Lamer J.’s decision in Aubry [10] may further explain why the defendant’s conduct constitutes a fault: 23 In the case at bar, I am of the view that the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image. In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault.

I am of the view that a reasonable person would have been more diligent and would at least have tried to obtain the respondent’s consent to the publication of her photograph. The appellants did not do everything necessary to avoid infringing the respondent’s rights. ... [ 68 ] In short, individual freedom is still at the heart of the fundamental values of our free and democratic society.

As stated by L'Heureux-Dubé and Bastarache JJ. in Aubry : 64 When the values at issue in a case must be balanced, it is important to bear in mind that our law is characterized by recognition of interrelated rights whose purpose is to strengthen the democratic ideal. Individual freedom is at the heart of that ideal. ... [11] [ 69 ] In failing to respect Ms. Grillo’s personality rights, the defendant committed a civil fault and is thus liable for the injuries she has suffered. It remains necessary to assess the damages to which the plaintiff is entitled in the circumstances described at trial. 3.

The damages to which the plaintiff is entitled [ 70 ] The violation of the right to privacy and to one’s image is considered an extracontractual fault (article 1457 C.C.Q.). The rules of that legal regime must be applied to assess the compensation to which the plaintiff is entitled. [ 71 ] Not only is the plaintiff required to prove the existence of a fault, but she must also prove the damage she alleges to have suffered and a causal connection between the fault and the injury. The burden of proof for each of the three elements comprising extracontractual liability rests on Ms.

Grillo’s shoulders. [ 72 ] In this regard, L'Heureux-Dubé and Bastarache JJ. stated the following: 68 Where extrapatrimonial damages are concerned, we agree with Baudouin J.A. that the infringement of a right guaranteed by the Quebec Charter is in itself insufficient to establish that damage has been sustained. Nor is an award of symbolic damages justified when the courts wish to punish the infringement of a right that will, in most cases, result in minimal injury.

This would be contrary to the principles of civil responsibility. 69 The damages must, therefore, be proven. … [12] [ 73 ] In the present case, the plaintiff’s claim contains some fairly serious weaknesses. [ 74 ] First, the evidence provides no information as to the extent or the number of virtual visits of her house on the defendant’s website. Moreover, the plaintiff is neither a celebrity nor a public figure. [ 75 ] From these observations, the Court infers that the number of people interested in viewing and that in fact viewed the page on which the plaintiff’s house is found is rather limited.

In all probability, these people are concentrated among certain members of her entourage and her colleagues. [ 76 ] Moreover, the evidence submitted by Ms. Grillo is not sufficiently substantiated for the Court to conclude under civil law that there is indeed a causal connection between the capture and dissemination of her image by the defendant and the depression that she claims to have suffered thereafter. [ 77 ] In fact, the plaintiff has submitted no medical evidence or psychological report. She did not have any health professional or any other witness testify on this issue.

The Court is not aware of the conclusions or the diagnosis established by her doctor or the psychologist that she consulted on five or six occasions.

In the circumstances, the plaintiff’s assertions are insufficient to establish an admissible causal connection between Google’s fault and the depression she alleges. [ 78 ] Finally, the evidence reveals that the plaintiff waited a little over two years after the appearance of the photo at issue on the defendant’s website, i.e., until June 8, 2011, before enforcing her rights against it through an attorney. [ 79 ] This period of time is much too long and is still inexplicable.

The plaintiff’s inaction for approximately two years certainly contributed to the injury she claims to have suffered, although in a manner that is difficult to quantify. This aspect of the file plays against her, especially considering that as soon as Google received her demand letter, it immediately and without delay did what needed to be done to satisfy her demands. [ 80 ] The plaintiff did try to enforce her rights against the defendant earlier by herself.

The evidence submitted, however, also reveals weakness in this regard, in particular an obvious disparity as to the specific date on which she sent her personal letter to Google.

[ 81 ] All that being said, there is nevertheless no doubt that the plaintiff was deeply upset and hurt by the capture and dissemination of her image. [ 82 ] She testified, at times in tears, about the mockery and disrespectful comments that she endured from her colleagues and the profound upset she felt upon realizing that her [ translation] “ private life” had not been respected. This incident was quite trying for her. [ 83 ] These elements are clearly sufficient to allow the plaintiff to receive compensation . In Aubry , [13] the Supreme Court stated the following: 69 The damages must, therefore, be proven.

As Dean Nerson pointed out in his thesis entitled Les droits extrapatrimoniaux (1939), at p. 384 (cited in Potvin, supra , at p. 272), damages [ translation ] “may consist simply in the annoyance felt by a person at becoming a ‘celebrity’”. The publication of a picture of a person that discloses a scene from his or her private life violates the victim’s feeling of [ translation ] “eminently respectable” propriety and can cause him or her a significant moral prejudice.

In his thesis entitled La protection des personnes contre la réalisation et la publication de leur image (1978), No. 347, at pp. 388-89 (cited in Potvin, supra , at p. 274), J. Ravanas described the elements of moral prejudice as follows: [ translation ] Such a feeling is likely to be offended each time a photographer invades someone’s privacy or serves it up to the public. The camera lens captures a human moment at its most intense, and the snapshot “defiles” that moment. The privileged instant of personal life becomes “this object image offered to the curiosity of the greatest number”.

A person surprised in his or her private life by a roving photographer is stripped of his or her transcendency and human dignity, since he or she is reduced to the status of a “spectacle” for others. … This “indecency of the image” deprives those photographed of their most secret substance. [ 84 ] In the Court’s opinion, although the evidence submitted by the plaintiff does not support an award as high as she seeks ($7,000), the evidence nevertheless reveals that she suffered a moral injury that is not limited to mere discomfort and some annoyance. [ 85 ] In fact, in addition to the malicious comments and humiliation that she suffered at work, the plaintiff specifically suffered a serious injury to her sense of modesty and dignity, two values that she held and that are [ translation] “eminently respectable”. [ 86 ] Taking into account all the factors that are favourable and unfavourable to the plaintiff, the Court sets the compensation to which she is entitled at $2,250.

FOR THESE REASONS, THE COURT: ALLOWS the plaintiff’s claim in part; ORDERS the defendant to pay the plaintiff the amount of $2,250, with interest at the legal rate and the additional indemnity set out in

article 1619 C.C.Q., as of the date of the demand letter, June 8, 2011, and court costs of $159. __________________________________ ALAIN BREAULT, J.C.Q. Date of hearing: May 27, 2014