Privacy law is the new frontier in personal rights. Although privacy may be “a protean concept” (R v. Tessling, para 25), it is one of the most fundamental issues in a digital era.
The lack of statutory development, and the challenges of extending existing statutory frameworks to emerging privacy issues, has forced the courts to develop new rights of action to protect the privacy interests of Canadians.
The second of these, the tort of public disclosure of private facts, has a troubled history. Decided on a default judgement, including the setting aside of the decision when the defendant decided to appear, it had a failed appeal of the setting aside of default and was left in limbo.
The tort had an uncertain future; although it technically still existed, and was cited by numerous cases, it had yet to be properly tried and defended. In the originating case itself, it had yet to be defended at all.
And yet this tort held the greatest potential to address some of the problems with privacy in a digital era. Fortunately this tort was eventually re-litigated with different parties, and a decision in Jane Doe 72511 v. Morgan, 2018 ONSC 6607, was released this month. As the Ontario Court of Appeal stated in the first of the privacy torts, “we are presented in this case with facts that cry out for a remedy.” The facts in this case were even more compelling.
This action arose out of the posting of a sexually explicit video by a former boyfriend on to a pornographic website, without the knowledge or the consent of the plaintiff. It was a volatile relationship, one that included allegations of physical violence, which occurred both before and after the birth of their child. Some of this violence even occurred in the home of the ex-boyfriend’s home, and with the parent’s knowledge. The video appeared to have been uploaded in retaliation for the arrest and conviction of the ex-boyfriend for assault of the plaintiff, making it a classic case of “revenge porn.”
These are the types of facts that are unfortunately far too common for the digital natives in our society. Private and even intimate information can easily be widely and broadly disseminated, with devastating effects. A private tort to address these actions helps create a general deterrence against this type of humiliation and indignation.
In addition to claiming the new tort of public disclosure of private facts, the plaintiff also claimed general, aggravated and punitive damages for assault and battery. The plaintiff also made an interesting claim against the ex-boyfriend’s parents in negligence, because as occupiers of the house they failed to take reasonable steps to protect her from their son’s behaviour in their house.
The torts of assault and battery, while definitely disturbing, are not particularly novel, and Justice Gomery had little difficulty finding the elements of these torts met. She also found that the parents owed the plaintiff a duty of care under the Occupier’s Liability Act, and that the voluntary assumption of risk exception under s. 4(1) did not apply. Justice Gomery cited the Supreme Court of Canada in R. v. Jobidon to support the proposition that “a person cannot consent to intentional application of force causing serious hurt or non-trivial bodily harm.”
Given the frequent witness of the physical and verbal abuse of the plaintiff, including observing evidence of the bruises of this abuse, the parents knew about the abuse in their home and it was reasonably foreseeable that their son would abuse the plaintiff again in the way he had in the past. Their failure to take reasonable care to keep the plaintiff safe in their home, including intervening or calling the police, breached the duty of care as occupiers under the Act.
She rejected the proposition that assault and battery by a spouse should attract a lower range of damages than by other defendants, noting that violence by an intimate partner may be even more traumatic than by a stranger, and awarded $20,000 in general damages. The parents were found jointly and severally liable for these damages.
Although the ex-boyfriend used the mother’s computer to upload the video, Justice Gomery did not find negligence for the video by the parents, as they did not have knowledge of it at the time, and it was not reasonably foreseeable. Justice Gomery stated,
60 …There is no Ontario law establishing a civil right of action for the posting of intimate images without consent. In Jones v. Tsige, the Ontario Court of Appeal established a right of action for a related tort, intrusion on seclusion, but declined to rule on whether Canadian law should recognize other torts based on breaches of privacy.
Prior to this case, one other Ontario court considered a claim like this one in Jane Doe 464533 v. N.D. In that case, Stinson J. issued a default judgment, later set aside, concluding that a defendant who posted intimate images without consent was liable for public disclosure of private facts.
After reviewing the first instance of the tort of public disclosure of private facts, Justice Gomery considered Bill C-13, the Protecting Canadians from Online Crime Act, which was introduced in 2014, making it a criminal offence to publish an intimate image without consent. Given that Manitoba is the only Canadian jurisdiction that has enacted legislation to address this harm with the Intimate Image Protection Act, there was a need for a similar legal remedy in Ontario. She stated that where a misconduct attracts criminal sanction, it makes sense that the same misconduct should also provide a similar remedy,
85 Parliament’s criminalization of the publication of an intimate image without consent recognizes that this behaviour is highly offensive and should give rise to a civil remedy for a person who suffers damages as a result of it. The only question is how this is best accomplished.
88 It is difficult to conceive of a privacy interest more fundamental than the interest that every person has in choosing whether to share intimate or sexually explicit images and recordings of themselves. Every person should have the ability to control who sees images of their body. This is an important part of each individual’s personal freedom to decide how they share the most intimate aspects of themselves, their sexuality and their bodies. A cause of action which protects this privacy interest is rooted in our deepest values as a society. Failing to develop the legal tools to guard against the intentional, unauthorized distribution of intimate images and recordings on the internet would have a profound negative significance for public order as well as the personal wellbeing and freedom of individuals.
Justice Gomery adopted the same elements of the tort as the previous public disclosure of private facts case, and found the ex-boyfriend to be liable:
(a) the defendant publicized an aspect of the plaintiff’s private life;
(b) the plaintiff did not consent to the publication;
(c) The matter publicized or its publication would be highly offensive to a reasonable person; and
(d) The publication was not of legitimate concern to the public.
In attempting to quantify damages for this tort, Justice Gomery described the impact of the harm,
123 Revenge porn can have devastating consequences. In the most extreme cases, where sexually explicit images of very young people have been shared without their consent, the victims have been driven to suicide because of their feelings of intense shame and social isolation. In every case, the victim is betrayed by someone they trusted. Something that may have been a celebration of their affection or sexual attraction for another person is used against them. They have forever lost their right to control who sees their body. Even if the posting is removed, copies remain as the result of downloads and sharing. They live with the fear that this single event will define how they are perceived and treated by family, friends and strangers for the rest of their lives.
Justice Gomery also adopted Justice Stinson’s rationale in the first public disclosure of private facts case for quantifying damages in the range of sexual assault cases, indicating that the factors in this case was in many ways even more serious, citing the tens of thousands of times the video had been viewed. She found that the ex-boyfriend had actual malice to the plaintiff through his additional conduct, and awarded general damages of $50,000 and aggravated damages of $25,000. She also awarded an additional $25,000 in punitive damages, to emphasize the seriousness of the defendant’s actions, and to provide general deterrence to others.
Finally, the judge considered whether the plaintiff was entitled to the remedy that would compel the ex-boyfriend to destroy all nude and intimate images and recordings, and a prohibition against publishing posting, sharing, or otherwise disclosing them. These remedies were not sought in the statement of claim or the motion, but were deemed appropriate in the circumstances.
Despite the overall success of the plaintiff in this matter, it may still be too premature to conclude that the tort of public disclosure of private facts has in fact been firmly entrenched in our jurisprudence. As with the first instance of this tort, this claim remained undefended, and the decision was also decided on a default judgement.
However, even if the defendants in this case also seek to set aside the default judgment, the quantum of damages found in this case, and the analysis provided by Justice Gomery, should ideally have the deterrent effect sought by our courts to discourage this type of conduct in society.