Another New Privacy Tort for Ontario

Last week saw a rather striking decision issued by the Ontario Superior Court of Justice. 2102 saw the tort of “intrusion upon seclusion” recognized; in 2016, we now have the tort of “public disclosure of private facts”. Unlike the 2012 decision, this one came with a large damage award.

The story leading up to the judgment is simple and regrettable. A young woman, away at university and after much pleading by her former boyfriend, sent an intimate video of herself to him. He promptly (as in the same day) published the video on the Internet. The video was subsequently taken down but the emotional and psychological damage had been done.

In this instance, the young woman courageously sued for damages and told her story. The defendant/boyfriend did not defend the suit and the matter found itself before Mr. Justice Stinson for decision. And what a decision he rendered.

After finding that the elements for the tort of breach of confidence had been met as well as the tort of intentional infliction of emotional harm, Mr. Justice Stinson went on to note:

“While the facts of this case bear some of the hallmarks of the tort of ‘intrusion upon seclusion’, they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.” That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.””

Conduct characterized as “revenge porn” clearly fits within the elements of this tort. Mr. Justice Stinson, having found that not one but two torts had been committed, could have stopped there. However, in concluding as he did, he recognized a new cause of action: “public disclosure of private facts”. Mr. Justice Stinson modified the test articulated by Prosser, reflecting modern communication technology, to say “…if the matter publicized or the act of publication…”

The plaintiff had asked for compensatory and punitive damages but, in bringing the action under Ontario’s Simplified Procedure, the maximum limit was $100,000. In Jones v. Tsige, the decision that gave us the tort of intrusion upon seclusion, the court was very “cautionary” both in describing the circumstances giving rise to the tort and the amount of damages to be awarded.

Mr. Justice Stinson, noting the existence of Tsige, distinguished that decision and awarded $50,000 in general damages, $25,000 in aggravated damages and $25,000 in punitive damages. He also granted injunctive relief in the form of an order to the defendant to destroy any copies, should they exist, and a permanent prohibition of contact with the plaintiff and her immediately family.

The decision, issued 21 January 2016, is not yet published. The court asked the plaintiff’s counsel to present a redacted version of the decision so as to remove any identifying reference to the plaintiff. The court also directed that any account/report not contain any information so as to identify the plaintiff and that the defendant should only be identified by his initials.

The bottom line here is that revenge porn is about to get very expensive for perpetrators. While we wait and see how damages under Manitoba’s new law works out, Ontario has surprised us all with this extraordinary legal precedent.  The last line of the judgement says it all:

“Quite apart from the personal result for her, her efforts have established such a precedent that will enable others who endure the same experience to seek similar recourse.”