D. Canadian court recognizes new tort of public disclosure of embarrassing private facts and awards damages totaling $100,000 and issues an injunction against the Defendant
Jane Doe 464533 v. D.(N.), 2016 ONSC 541, per Stinson, J.
I. FACTS AND ISSUES
The female Plaintiff and male Defendant began dating in grade 12. After the school year ended, they broke off their formal relationship but continued to see each other romantically in the summer and fall of 2011. By that fall, they were both 18 years old.
The Plaintiff went to attend university in another city. Notwithstanding that they were no longer “boyfriend and girlfriend,” the parties continued to communicate regularly online, with texting and by telephone. They would physically see each other when she returned to her parents’ home.
In August, 2011, the Defendant began repeatedly asking the Plaintiff to make a sexual explicit video of herself and to send it to him. She ultimately recorded an intimate video in November, 2011. Before she sent it to the Defendant, she texted him, advising she was unsure about sending it to him. However, he talked her into it, reassuring her that nobody else would see the video. Accordingly, “she ‘caved in’ and sent the video to him.
In early December, 2011, the Plaintiff learned that the Defendant had posted her video on an Internet pornography site, the same day that she had sent it to him, under the title “College girl pleasures herself for ex-boyfriends [sic] delight.” He also showed it to young men that they both knew from high school. It became known among her friends.
The Plaintiff was “devastated, humiliated and distraught.” She got the Plaintiff’s mother to speak to the Defendant, after which the video was removed from the website after having been online for approximately three weeks. There was “no way to know how many times it was viewed or downloaded and how many times it may have been copied.”
The Plaintiff suffered significant consequences as a result of this. She had to defer her Christmas exams because she was physically and mentally distraught. She had sleep difficulty and skipped class. When she came home for Christmas break, her condition deteriorated to the point that her mother took her to a crisis intervention centre at a hospital. She ended up seeing a counselor for over a year and a half because of the “emotional fallout”, and suffered “serious depression and emotional upset.” She continued to suffer from panic attacks. Whenever she had eye contact with the Defendant after the posting, he showed “an insolent look on his face, as if he was proud of himself.” He had made no expressions of remorse.
The existence of the video became known to members of the Plaintiff’s friends and social circle and harmed her reputation. She finished her undergraduate studies after four years and, at the time of the hearing was attending a graduate program to become a healthcare professional. However, she remained emotionally fragile and worried about the possibility that the video “may someday resurface and have an adverse impact on her employment, her career, or her future relationships.”
The Defendant did not defend and was noted in default. When served with the notice of her application for assessment of damages, he continued to remain uninvolved in the case.
II. HELD: For the Plaintiff, damages of $100,000 awarded and permanent injunction issued requiring destruction of the images and prohibiting further dissemination and prohibiting further contact with the Plaintiff and her immediate family
1. The Court noted that “[i]n recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent.” It was held that adults may also suffer great harm from such acts, to the extent that in 2014, Parliament amended the Criminal Code to create the new offence of publication of an intimate image without consent: Criminal Code, R.S.C. 1985, c.C-46, s.161.1. The province of Manitoba also enacted legislation to create the tort of “non-consensual distribution of intimate images”: The Intimate Image Protection Act, C.C.S.N., c. 187, s.11. This case raised the question of availability of a common law remedy for victims of this kind of conduct.
(a) The Court held that common law had developed to the point where there were legal grounds to justify “the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition” (p.19).
2. The Court held that the Defendant was liable for the tort of breach of confidence.
(a) The Court summarized the elements of this tort:
21 In Grant v. Winnipeg Regional Health Authority,  M.J. No. 116 (Man. C.A.), the Manitoba Court of Appeal summarized the law in relation to claims for breach of confidence as follows (at paras.118-119):
Tort law has recognized that a breach of confidence in certain circumstances may create a cause of action (see Lac Minerals Ltd. v. International Corona Resources Ltd.,  2 S.C.R. 574; and Cadbury Schweppes Inc. v. FBI Foods Ltd.,  1 S.C.R. 142). Courts have recognized that the unauthorized use of confidential information to the detriment of the party communicating it, and from which damages ensue, may lead to a cause of action. The elements required to make out the tort of breach of confidence are:
a) That the information must have the necessary quality of confidence about it
b) That the information must have been imparted in circumstances importing an obligation of confidence, and
c) That there must be unauthorized use of that information to the detriment of the party communicating it (see H.R.G. v. M.S.L., 2007 BCSC 930, 75 B.C.L.R. (4th) 141; Canada (Attorney General) v. Rundle (c.o.b. NEC Plus Ultr), 2013 ONSC 2747, 16 B.L.R. (5th) 269 (QL); and Sabre Inc. et al. v. International Air Transport Association et al., 2011 ONCA 747 at p.14, 286 O.A.C. 246).
(b) The Court held that all three elements of the tort had been established. As to the first, the video was “private and personal to the plaintiff” and therefore had the “necessary quality of confidence about it.” As to the second, it was held that the “circumstances that lead to the creation and communication of the video clearly demonstrate that it was communicated to the Defendant on the express basis that he would treat it as confidential.” As to the third, the Court held that although prior cases held that the necessary injury was established by economic damage in commercial circumstances, there was no reason not to find that the psychological harm suffered by the Plaintiff qualified:
24 The third element of the tort, use of the information to the detriment of the party communicating it, is ordinarily considered in commercial circumstances, where the recipient has misused the confidential information for commercial advantage, at the expense or to the detriment of the other party. An essential element in any tort is harm to the plaintiff. I see no rational basis to distinguish between economic harm and psychological, emotional and physical harm, such as was experienced by the plaintiff in the present case. In any event, the possible future adverse impact on the plaintiff’s career and employment prospects arising from the possibility that the video may someday resurface, also demonstrates actionable harm.
3. The Court also held that the Plaintiff had established the tort of intentional infliction of mental distress.
(a) The Court summarized the elements of that tort as follows:
26 In Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (Ont. C.A.), Weiler J.A. adopted the test for intentional infliction of mental distress, as set out by McLachlin J. in Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (B.C. S.C.). This test requires:
(i) conduct that is flagrant and outrageous
(ii) calculated to produce harm, and
(iii) resulting in a visible and provable injury.
(b) The Court held that the Defendant’s conduct was flagrant and outrageous. Although malice is not necessary to establish the tort, the Court held that malice on the part of the Defendant was established by the fact that he posted the video online as soon as he got it.
(c) Posting the video was also held to have been calculated to produce harm. The Court held that “although the extent of the harm need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow.”
(d) The Plaintiff had suffered the necessary visible and provable injury in the sense of psychological harm. She had been diagnosed with depression. This was a “visible and provable illness."
4. The Court held that the Plaintiff had established one of the invasion of privacy torts.
(a) The Court cited with approval the four types of invasion of privacy torts recognized in the United States as summarized in an article by Professor Prosser:
36 The Court went on to recognize as authoritative a seminal American legal article on the subject by William L. Prosser, “Privacy” (1960), 48 Cal. L. Rev., noting that “Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p.389:
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.”
(b) The Court held that privacy torts should be recognized because Charter cases have held that privacy is worthy of constitutional protection and should be considered a Charter value. Additionally, while the Charter does not apply to common law suits between private individuals, the common law is to develop in a manner consistent with Charter values and that with the advent of Internet and digital technology, common law evolve to respond to it: Jones v. Tsige, 2012 ONCA 32, at paras.39 – 69.
(c) The Court held that the facts of this case fell into the category of the second type of privacy tort recognized by Professor Prosser, the public disclosure of embarrassing private facts. The Court felt that this tort should be recognized in Canada because “[t]o permit someone who has been confidentially entrusted with such details – in particular intimate images that to intentionally reveal them to the world by the Internet, without legal recourse, would be to leave a gap in our system of remedies” (p.45). The Court summarized the elements of this tort as they should be recognized in Canada and concluded that they had been established in this case:
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 by the Court].
47 In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.
5. The Court held that damages was a remedy available with respect to this tort. Given that there were no reported cases quantifying damages for this type of tort, the Court felt that cases awarding damages for physical sexual battery (with the attendant psychological injuries) are of assistance. Quoting from B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, the Court held that the interest at stake were intangible – the “dignity and personal autonomy” of the victim. Damage awards should take a functional approach in relation to those interests in addition to the more familiar ones of pain, suffering and loss of enjoyment of life.” It was held that the damages in this type of tort should provide solace for the victim’s suffering, vindicate the victim’s dignity and personal autonomy, and recognize that the wrongful acts were humiliating and degrading (paras.53 – 56).
(a) The Court summarized the non-exhaustive list of factors that should be considered:
134 The Supreme Court in Blackwater v. Plint,  3 S.C.R. 3 at p.89 approved the factors considered by the trial judge in that case: W.R.B. v. Plint,  B.C.J. No. 1446 (Q.L.) (S.C.) at p.398 ff. These include:
. . .
• the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were
• the circumstances of the defendant, including age and whether he or she was in a position of trust, and
• the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.
135 Consideration of these factors, in my view, will assist in determining an appropriate amount of non-pecuniary damages to serve the functions of providing solace for the pain, suffering and loss of enjoyment of life flowing from the assaults, of demonstrating vindication of the victim’s rights of personal dignity and individual autonomy and, with regard to aggravated damages, of appropriately recognizing the humiliating and undignified nature of the defendant’s conduct.
(b) Considering these factors, the Court held that an award of $50,000 was appropriate for general damages. The “relatively modest” $10,000 award in Jones v. Tsige represented a “much different situation” where the “privacy right offended and the consequences to the Plaintiff were vastly less serious and offensive” (p.58).
(c) Aggravated damages were also warranted because “the posting of the video amounted to a breach of the trust reposed by the Plaintiff in the Defendant that he would not reveal it to anyone else” (p.59).
(d) Punitive damages were also warranted, in this case $25,000. This was taking into account proportionality and “the blameworthiness of the Defendant’s conduct (high); the degree of vulnerability of the Plaintiff (significant); and the harm directed specifically at the Plaintiff (again, significant).” The Court also felt that this was a case that needed to consider deterrence (paras.60 – 62).
6. The Court felt it was appropriate to grant the injunctive relief sought by the Plaintiff.
(a) The required to destroy any images or recordings in his possession or under his control as may exist and he was permanently prohibited from “publishing, posting, sharing or otherwise disclosing in any fashion any intimate images or recordings of the Plaintiff.”
(b) The Court also granted an injunction prohibiting the Defendant from having contact (direct or indirect) with the Plaintiff and her family).
This case recognizes a new invasion privacy tort in Canadian law, as has existed in the United States for some time. In the United States four types of invasion of privacy tort are recognized and they are now coming to be recognized in this country. In Jones v. Tsige (2012) 108 O.R. (3d) 241 the Ontario Court of Appeal recognized the tort of intrusion upon seclusion. In that case one bank employee accessed the records of another employee who had become involved with her husband. Both the prying employee and the bank were exposed to liability.
This case imports (with a minor modification or clarification) the American tort of public disclosure of private embarrassing facts. There may be liability exposure for the employee of individual tort-feasors who allow this kind of conduct to occur or who fail to take reasonable steps to detect or prevent such conduct on the part of employees or others for whom they may be vicariously liable. Also, as you can see, there is the potential for substantial awards for compensatory, aggravated and punitive damages in such cases.