Spokeo: Will U.S. Supreme Court's Decision Impact Privacy Damages In Canada?

The Spokeo decision's requirement that there be a concrete injury in order to ground privacy damages is not just a U.S. issue. Canadian courts have been wrestling for some time with the question of what damages look like in the context of privacy breaches, especially in class actions. While not definitive or binding north of the border, Spokeo may provide insight into how future statutory privacy breach actions are framed in Canada.

On May 16, the Supreme Court of the United States ("SCOTUS") released its reasons in Spokeo, Inc. v. Robins ("Spokeo"). The case is significant because it addressed the issue of what degree of damages are necessary in order to assert standing to bring such a claim, an issue that has long troubled "privacy breach" claimants in both Canada and the U.S. The existence of a private right of action under a U.S. federal statute does not automatically suffice to meet the "real" harm standard.