New Privacy Tort – When Private Images Are No Longer Private

With the advancements in technology, and the debilitating addiction to electronic devices plaguing most, the law has had to develop new causes of action to respond to the often devastating impact that the spread of private, and sometimes intimate, information can have.

Most people can understand the Sloan Sabbith of The Newsroom response to a video of them performing a sexual act or nude photographs being leaked onto the internet by someone that was trusted with keeping them in confidence. (Note: this approach is neither recommended nor condoned.)

Fortunately, the Court has started the process of developing a cause of action that will allow victims of such privacy violations to be compensated. In Jane Doe 464533 v N.D., 2016 ONSC 541, the plaintiff, an 18 year old woman in college, sent a video of her performing a sexual act to a former boyfriend, with whom she maintained a relationship. She sent him this video only after he provided assurance to her that it would not be shared. Without the plaintiff’s permission or consent, the defendant posted the video to a pornographic website and showed it to his friends, who also knew the young woman. The video was removed after being posted for three weeks; however there was no way of knowing how many times it was viewed or downloaded, or if it had been copied to other devices and recirculated.

The disclosure of this private information had a debilitating effect on the plaintiff. She had to defer examinations in school. She fell into an emotional crisis, suffering from depression. She had to seek treatment from a crisis intervention centre, and undergo counseling.

Litigation was commenced against the defendant for damages resulting from the publication of the video. The defendant failed to respond to the claim, and default judgment was sought.

The Court held that the plaintiff successfully proved that the causes of action of breach of confidence and intentional infliction of mental distress had been made out. Justice Stinson noted that there is currently a gap in the law in responding to wrongs resulting from the use of technology. In evaluating whether the tort of invasion of privacy, or intrusion upon seclusion, had been made out, the Court laid out the criteria for a new cause of action, public disclosure of private facts.

The following elements of the tort of public disclosure of private facts were adopted: 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. To successfully make out this cause of action, the facts disclosed have to be of a private nature, and the disclosure of the facts must be a public one. The matter made public must be one which would be “offensive and objectionable to a reasonable man of ordinary sensibilities.”

In supporting the creation of this new tort, Justice Stinson relied on Charter principles, commenting:

It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

In determining the appropriate damages to award, Justice Stinson drew from the purposes in awarding damages in sexual battery cases, as the defendant’s conduct in the present case also offended and compromised the plaintiff’s dignity and personal autonomy. A non-pecuniary award for public disclosure of private facts should “demonstrate, both to the victim and to the wider community, the vindication of these fundamental, although intangible, rights which have been violated by the wrongdoer.” In total, the plaintiff was awarded $50,000 in general damages, $25,000 in aggravated damages and $25,000 in punitive damages.

In response to the decision, the defendant brought a motion to have the default judgment set aside. The motion was granted. One of the reasons provided by the Court for setting aside the judgment was that, if there is a full hearing on the merits, the significant legal conclusions deriving from the facts of the case will have more weight in future cases.

It remains to be seen if this case will reach trial, or if there will be a resolution outside of the courtroom. The courthouse door has been opened however, for people who fall victim to their private information being publicized without their consent. There is now an opportunity for these victims to be compensated for the damages they suffer as a result of the defendant’s invasion of their privacy.