Invasion of Privacy Tort Continues to Develop

In Ontario, conventional wisdom was that invasion of privacy was not something you could sue for. But that is changing, as evidenced by a just released decision of the Ontario Superior Court of Justice called Jane Doe 464533. That decision awarded damages and costs totaling $141,000, plus an order for the defendant to destroy any video or images he may still have, never to share any intimate images of the plaintiff, and to not communicate with the plaintiff or her family. A pdf version of the decision is here: Doe – redacted

Until this decision, the first case of a successful tort action for invasion of privacy was Jones and Tsige. The tort in that case was called intrusion upon seclusion, and basically applies only to nosy neighbour cases. In other words, where an individual accesses personal information on someone for nothing more than curiosity. The damages for that are capped to such an extent that in practice it probably isn’t worth taking it to court.

Some privacy class actions have been started since then, which would require an expansion of current law to succeed, but none have reached trial.

In the Jane Doe case the defendant was a former boyfriend of the plaintiff who convinced her to take an intimate video of herself, promising that he would not show it to anyone. But of course he posted it online. That lead to severe emotional distress for the plaintiff.

While the decision is ground breaking, there is a caveat to it. The defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. This issue will eventually make it to an appeal court in another case to settle the law.

This decision will no doubt be analysed and cited by anyone attempting to sue for a privacy breach, or seeking a remedy for cyberbullying or revenge porn.