## Facts

- In 1987, Gilbert Duclos photographed Pascale Claude Aubry, a 17-year-old student, sitting on steps near a public sidewalk on Sainte-Catherine Street in Montréal.
- The photograph was candid, taken in a public place, and Aubry was identifiable.
- Les Éditions Vice-Versa inc. later published the photograph in its arts and culture magazine, without Aubry’s knowledge or consent, in an issue addressing urban life.
- Aubry testified she was embarrassed and humiliated after classmates recognized her and mocked her.
- Aubry sued in civil liability, alleging unlawful interference with her privacy and image rights protected by the Quebec Charter of Human Rights and Freedoms.

## Issues

1. Whether publishing an identifiable photograph of a private individual taken in a public place without consent infringes the right to respect for private life under the Quebec Charter.
2. Whether the infringement is justified by freedom of expression and artistic freedom, including the public’s right to information, under the Quebec Charter.
3. Whether Aubry proved compensable prejudice warranting damages.

## Decision

- The Supreme Court of Canada dismissed the appeal and upheld liability for publishing Aubry’s photograph without consent.
- The majority held the publication infringed Aubry’s right to respect for private life because the right to one’s image is a protected component of privacy.
- The majority held freedom of expression and artistic freedom did not justify the publication because the image was not connected to a matter or person of public interest.
- The Court upheld an award of modest non-pecuniary damages (as fixed by the Quebec courts) for humiliation and embarrassment caused by the unlawful publication.
- Dissents would have given greater weight to expressive freedom for street photography in public places and would not have found liability on these facts.

## Legal Principles

- Under Quebec law, the right to one’s image is a component of the right to respect for private life protected by the Quebec Charter.
- Publishing an identifiable person’s image without consent constitutes an interference with that right, even if the photograph was taken in a public place.
- Freedom of expression, including artistic expression, is not absolute and must be exercised with regard for others’ Charter rights.
- Consent to publish may be unnecessary when the person is a public figure, the image is tied to an event or matter of public interest, or the person appears only incidentally in a scene of public interest.
- Civil liability and Charter damages may be awarded where the unlawful publication causes direct and immediate non-pecuniary harm such as embarrassment or humiliation.

## Conclusion

The Court held that publishing a recognizable photograph of a private individual without consent violates Quebec Charter privacy protections unless justified by a genuine public-interest context, and it affirmed modest damages for resulting moral harm.


Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591 (Can.)