WOMAN’S ‘VIDEO CLIP’ BATTLE.

OTTAWA • An Ottawa woman has won a lawsuit that could have implications on the right to privacy in the age of social media.

Basia Vanderveen, a communication strategy consultant, successfully sued in small claims court after a short video clip of her jogging was used in a promotional video for a condominium project in the city’s Westboro neighbourhood.

“It’s about the right to control one’s image,” says Paul Champ, Vanderveen’s lawyer. “We all have the right to enjoy some measure of privacy, even when we are in public places.

“In the age of social media, when people go to great length to curate their public images, the law has to recognize that the misuse of someone’s likeness or image by another constitutes a violation of privacy. The court agreed with us.”

The defendant, Waterbridge Media, takes the opposite view of the decision, which it called a “gross overextension of the law.”

“In a day, an age where everyone has a video camera in their pocket, when everyone has a camera in their pocket attached to their cellphone, it’s unbelievable that a ruling like this was made,” said Waterbridge president Brian Frank.

Vanderveen was filmed in 2014 as she was jogging along the Ottawa River in Westboro. The videographer worked for Waterbridge, which was hired to shoot a promotional video for the condo developer, BridgePort.

Vanderveen appears on screen for less than two seconds of the one-minute, 20-second video. A friend of Vanderveen saw the video online and told her about it.

Vanderveen testified she felt the video “blasted her image to the world without her consent or permission.”

Vanderveen had only recently taken up running after the birth of her children and testified she thought it made her look overweight and it caused her anxiety and discomfort.

Vanderveen testified she saw the camera and covered her face to show she didn’t want to be filmed, but the videographer continued, tracking her movements. She complained to the condo company, which took the video off its site, Champ said. Waterbridge Media, however, left the video online for a longer period.

“She was simply having a private jog along the river one morning and ended up being in a commercial without her consent,” Champ said. “They made the argument that if they don’t use someone’s image in a way that is embarrassing or if they portray someone in an unflattering light — here it is just her jogging and it’s not inherently objectionable — that they should be allowed to use the footage.

“We argued that how someone sees themselves is more important than how a third person sees them.”

Vanderveen has gone on to compete in four Ironman triathlons, including two extreme triathlons, Champ said.

Frank said it’s the first time in the company’s eightyear history it’s received a complaint like Vanderveen’s. The decision will have a chilling effect on the media industry, he warned.

“It essentially means you’re not legally allowed to capture any public areas in video. It’s not just about whether the person is representing the brand you’re shooting for or your misrepresenting their endorsement of a product or service. If they’re visible at all, you can’t capture them. That’s really, really harmful to the industry.”

Vanderveen was awarded $4,000 in damages for breach of privacy, plus an additional $100, which is what Deputy Judge Roger Leclaire ruled she should have been paid for appearing in the film.