New privacy tort penalizes sharing of intimate images
October 3, 2016
As a person reading a blog, you know the internet has changed the way we do so many things including a change to our conceptions of privacy and what constitutes an invasion of our privacy. In a recent decision, the Ontario Superior Court has recognised a new tort of public disclosure of private facts as a result of an egregious breach of privacy on the internet.
The 18-year-old plaintiff had been in a romantic relationship with the defendant, a young man from her hometown. When the plaintiff went away to university, their formal relationship ended but they continued to keep in touch. The defendant repeatedly insisted the plaintiff make an intimate video of herself to send him. Although she was resistant, the plaintiff eventually sent the video that was intended, and promised to be, for the defendant’s eyes only. However, the defendant immediately shared the intimate video on a public pornography website and showed it to several of their common friends. The video remained online for three weeks before the plaintiff heard about it and demanded the defendant to remove it. The plaintiff experienced significant and long-lasting psychological distress as a result of the incident, including depression and panic attacks. The Plaintiff issued a claim for damages.
In a motion for default judgment in which the defendant did not participate, the Court recognised three types of legal wrongdoing in the circumstances. Specifically, the defendant was found liable for the two established torts of breach of confidence and intentional infliction of mental distress. The Court went on to create a new tort of “public disclosure of private facts”, expanding on the Ontario Court of Appeal’s 2012 decision in Jones v. Tsige which created the privacy tort of “intrusion upon seclusion”. The new tort applies where a person gives publicity to a matter concerning the private life of another if the matter publicized or the act of the publication:
a) would be highly offensive to a reasonable persons; and
b) is not of legitimate concern to the public.
The Court found the test was met in this case and awarded the plaintiff $50,000 in general damages, $25,000 in aggravated damages and $25,000 in punitive damages. The quantum of the award was largely based on awards in sexual assault cases where there was a similar harm to dignity, but was limited by the $100,000 cap on damages in the simplified procedure through which the plaintiff brought the action. The court also granted an injunction requiring the defendant to destroy the video and prohibiting him from communicating with the plaintiff.
In this case, the court recognised that although private information and activities have become somewhat rare in the internet age, they are still worthy of protection. As a result of this recognition, the right to privacy now has a new remedy.
Jane Doe 464533 v. N.D., 2016 ONSC 541 (Stinson J.)