[co-author: Connor Wilson - Articling Student]
In ES v Shillington, 2021 ABQB 739 [Shillington], the Alberta Court of Queen's Bench recognized the tort of public disclosure of private facts for the first time in Alberta. This decision expands remedies available to plaintiffs in privacy-related actions, in particular those where a defendant discloses the plaintiff's private information, such as intimate images or financial information.
In Alberta, the Protecting Victims of Non-Consensual Distribution of Intimate Images Act provides a remedy to those whose intimate images are distributed without their consent. The Act, however, does not apply retroactively nor protect situations where images are distributed privately.
While Shillington focuses on distribution of intimate images, the tort recognized by the Court is not limited to such scenarios, and may also be applied to other sensitive information, such as bank records and health records.
The plaintiff and the defendant were in a romantic relationship for 11 years. Throughout the course of their relationship, the plaintiff shared intimate images with the defendant. She did so with the express understanding they would not be shared with anyone. Near the end of their relationship, the defendant told the plaintiff that he had posted the images to various websites periodically for most of their relationship.
The relationship ended following a violent physical and sexual assault. With the help of the military chaplain, the plaintiff was able to escape on a weekend when the defendant was not at home. She fled to Alberta from New Brunswick with their children.
Elements of the New Tort
In establishing the tort of public disclosure of private facts, the Court adopted wording from the analogous tort recognized in Ontario. The test for the new tort of public disclosure of private facts in Alberta is as follows:
- the defendant publicized an aspect of the plaintiff's private life;
- the plaintiff did not consent to the publication;
- the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and
- the publication was not of legitimate concern to the public.
There are recognized privacy interests in the financial and sexual aspects of one's life, and also in one's health records and relationships. The list of private areas of life is not closed. A court may ask how a reasonable person in the place of the plaintiff would feel when faced with the same level of publicity to determine if something outside the list is private and should attract a remedy.
Damages and Remedies under the New Tort
The Court granted the plaintiff a permanent injunction and monetary damages. Justice Inglis required that the defendant make best efforts to return all of the plaintiff's images, and to make best efforts to remove the images online. Part of the reason that the defendant was required to remove the images was that they may not all be caught by the existing statutory regime, and may cause further harm to the plaintiff.
Here, the plaintiff's severe psychological trauma is a reasonably foreseeable effect of her intimate images being posted online without her consent. It is noted this is an intentional tort, and therefore the defendant can be liable for unforeseen consequences.
Justice Inglis found that the defendant's conduct was reprehensible, and awarded general, punitive, aggravated and special damages. While other damages were also awarded to the plaintiff, Justice Inglis awarded the following in connection with the damage suffered under the tort of public disclosure of private facts: (i) $80,000 in general damages for the pain and suffering that the plaintiff experienced; (ii) $25,000 in aggravated damages because of the defendant's malice and abuse of his position of trust, and (iii) $50,000 in punitive damages because of the volume of content posted online. Additionally, the plaintiff was awarded $30,000 to cover the costs she incurred in moving and seeking treatment. The Court declined to cover the full amount claimed because the causal link between the special damages and the tortious conduct was not fully established.
This Decision May Impact Businesses
Beyond the non-consensual distribution of intimate images, this decision may impact businesses, employers, and others who hold private customer or client information, such as bank or health records. This tort's arrival heralds the expansion of common law privacy torts in Alberta and underscores the importance of taking proactive steps to protect sensitive data.