Yet Another Privacy Tort Comes to Ontario

When the tort of intrusion upon seclusion was introduced in 2012, it was of significant importance. A civil remedy for the growing area of privacy rights was desperately needed, but it was uncertain how extensive this tort would be used.

I’ve spoken about this tort at law schools, to industry, and even published a journal article on it. But the area of privacy law is about to become even more exciting with the introduction of yet another privacy tort this week in Jane Doe 464533 v. ND [there is no CanLii link on this yet].

The parties in this case were high school sweethearts. Things turned slightly less sweet once the plaintiff moved away for university, but they remained in touch. As teenagers tend to do these days, they communicated via text message and the Internet. The defendant sent the plaintiff explicit photos of himself, and eventually, convinced her to do the same for him, even though they were no longer in a relationship. He provided assurances that nobody else would see the explicit video.

Such assurances from a jilted teen proved dubious. Within one month he had posted this video to an Internet forum with the title, “college girl pleasures herself for ex boyfriends (sic) delight” [para 8]. He showed the video to several of his friends from their hometown.

Needless to say the plaintiff was “devastated, humiliated and distraught.” She sleeplessly stayed in bed, couldn’t focus on school and deferred her Fall exams. She remained in her bed, not even showering. She sobbed endlessly, and “felt like a very cold person and felt like everything in my life and all of my beliefs and morals had been stolen from me” [para 12].

The video was only removed after 3 weeks once the defendant’s mother was contacted. I’m certain she wasn’t very pleased either. The video may have been downloaded though, and the plaintiff remained deeply concerned about its impact on her employment, her career, and her future relationships.

Justice Stinson, who presided over these proceedings, emphasized the growing concern over cyberbullying, especially with intimate images. He noted the amendments to the Criminal Code in 2014. In this case, no criminal charges were placed given the offender’s age. Although statutory liability has been created around this in Manitoba, no common law remedy exists elsewhere in Canada.

Justice Stinson drew upon existing areas of tort liability, including breach of confidence, intentional infliction of mental distress, and invasion of privacy. On this last tort, he drew upon Justice Sharpe’s statement in Jones v. Tsige,

[69] Finally, and most importantly, we are presented in this case with facts that cry out for a remedy…

The Court of Appeal in Jones drew upon the American Restatement (Second) of Torts (2010), which identified the following privacy torts at para 18:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The first was the one the court in Jones drew upon to create the tort of intrusion upon seclusion. Although there were similarities here to the case in Jones, Justice Stinson found the facts here were more closely aligned to the second tort from the Restatement,

[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

The reason for his addition is that Prosser’s formulation in 1960 could not have envisioned the ability to disseminate and publicize private facts in the manner which is possible today given the Internet.

Unlike the court in Jones, Justice Stinson awarded a larger damages award here of $50,000. He came to this calculus, recognizing the complete absence of case law on this point, by looking to similar cases on sexual battery. Although there was no actual physical touching in this case, the offence to the plaintiff’s dignity and autonomy was similar, and the facts were analogous to sexual assualt. The award was also justifiable to signal to both the victim and the wider community that there were intangible rights which were violated here.

Justice Stinson also awarded aggravated damages of $25,000, specifically because the defendant had provided assurances that he would not share the video with others. Given the defendant’s lack of remorse and refusal to apologize, Justice Stinson found it important to award an additional $25,000 of punitive damages “to dissuade others from engaging in similar harmful conduct” [para 62].

Finally, Justice Stinson granted an injuction ordering the defendant to destroy all copies of this video in his possession, preventing him from posting this video online or sharing it with others, and from having any contact with the plaintiff or her family.

The significance of this new tort of Public Disclosure of Private Facts cannot be overstated. Legislatures have struggled to find Charter-compliant means to curb inappropriate conduct online. The Criminal Code has proven too heavy-handed to address the same. And existing civil remedies have not proven effective enough.

The large damages award granted here, and the powerful and sweeping nature of the injunction, ensures that this new tort will certainly pop its head up in the future. More importantly, it sends an extremely powerful message to those who would engage in similar behaviour that there are now significant consequences in law.