Ontario Court Recognizes New Privacy Tort “Publication of Embarrassing Private Facts”
January 28, 2016
In Doe 464533 v. X (Doe 464533), the Ontario Superior Court of Justice (Court) found civil liability for the online publication of an intimate video by an ex-boyfriend. The case is significant because it signals the continuing expansion of privacy torts in Ontario, in this case through the recognition, for the first time in Canada, of the tort of “publication of embarrassing private facts.”
The plaintiff and the defendant were young adults who had had an on-again, off-again romantic relationship. The defendant spent several months coaxing the plaintiff to send him a sexually explicit video of herself. Eventually, the plaintiff created such a video and sent it to the defendant after he promised he would not share it with anyone. The same day, the defendant posted the video to an internet pornography site and showed it to several of the plaintiff’s acquaintances. The video was taken down after being online for about three weeks. It is not known how many times the video had been viewed or downloaded, whether it had been copied onto storage devices, or if it had been otherwise recirculated.
The case was brought under Ontario’s Simplified Procedure Rules. As the case was not defended, the plaintiff moved for default judgment.
NEW PRIVACY TORT RECOGNIZED IN ONTARIO
In its default judgment ruling, the Court relied heavily on the leading decision of the Ontario Court of Appeal in Jones v. Tsige, which recognized — for the first time in Canada — the tort of “intrusion upon seclusion.” The Court decided the facts of this case did not fit the tort of “intrusion upon seclusion”, but rather fit into a second privacy tort recognized in the United States called “publication of embarrassing private facts.”
The Court defined the new tort as publicizing a matter concerning the private life of another, if the matter publicized or the act of publication is highly offensive to a reasonable person and the matter is not of legitimate public concern. Private matters protected by the tort could include sexual relationships, family quarrels, or humiliating illnesses. The disclosure of the private facts must be a public disclosure — meaning the disclosure must be to the public at large, as opposed to a private disclosure to a small group. The facts disclosed must be private facts — meaning not facts that are generally known. The Court noted that although private facts in the Internet and social media age are increasingly rare, they remain worthy of protection.
The Court held the plaintiff had proven this cause of action, by showing that the defendant had posted an intimate video of the plaintiff on the Internet without her authorization, which a reasonable person would find to be highly offensive, and because there was no legitimate public interest in the video.
The Court also found the plaintiff had made out claims under the pre-existing torts of breach of confidence and intentional infliction of mental distress.
The Court awarded the plaintiff C$100,000 in damages, which is the maximum available under the Simplified Procedure Rules. The Court also awarded the plaintiff full indemnity for her legal fees.
PRIVACY TORTS CONTINUE TO EXPAND
How much traction the new tort of “publication of embarrassing private facts” will gain in Ontario and the rest of Canada remains to be seen. The Doe 464533 decision leaves open questions respecting the scope of the tort. Along with Jones v. Tsige, however, the case appears to signal an increasing willingness to expand the scope of privacy torts in Canada. This raises the prospect of additional privacy torts being recognized and the scope of civil liability for privacy breaches continuing to expand.
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Thomas Lipton 416-863-5260
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