A recent decision of the Ontario Superior Court in Doe 464533 v. ND found damages available to the victim of revenge porn[1] – the public sharing of a sexually explicit video without the consent of the victim – under the novel privacy tort of “publication of embarrassing private facts”.[2] The decision of the Court expands the common law protection of privacy and demonstrates that the courts can and will provide relief to victims of cyberbullying.
In this instance, the Ontario court continued to look to American law, specifically the Restatement (Second) of Torts[3] to create a privacy tort for revenge porn. In 2012, in the leading case of Jones v. Tsige the Ontario Court of Appeal created the tort of “intrusion upon seclusion” which it adopted from the Restatement (Second) of Torts.
With the growing connectivity of society and the vital role social media plays in our personal and professional lives cyberbullying, and in particular revenge porn is an emerging concern. Citizens should expect the law to protect victims and deter cyberbullying.
Although the Digital Millennium Copyright Act[4] provides an effective tool to remove copyright protected content from the Internet the court felt it necessary to provide deterrence for such transgressions of privacy.
Jones v. Tsige: INTRUSION UPON SECLUSION
The new girlfriend of the victim’s ex-husband abused her access as a bank employee to view his former wife’s banking activity on 174 separate occasions over the course of several years. Ms. Jones sued the new girlfriend for invasion of privacy. On first instance the lawsuit failed but on appeal the Ontario Court of Appeal found a cause of action under the new tort of “intrusion upon seclusion” and awarded Ms. Jones $10,000 in damages.
The privacy tort, intrusion upon seclusion is defined by the Court of Appeal as requiring the following necessary elements:
- an intentional or reckless intrusion;
- upon the private affairs of another;
- without lawful justification; and
- a reasonable person would find the intrusion of privacy as highly offensive causing distress, humiliation, or anguish.
Further, the Court of Appeal found that the plaintiff need not show actual economic loss to succeed and may be awarded damages up to $20,000.
Doe 464533 v. ND: THE REVENGE PORN TORT
In Doe 464533, the plaintiff and defendant were young adults involved in a romantic relationship when they went off to separate schools for University. The defendant repeatedly requested the plaintiff to send him a sexually explicit video of herself promising he would not share it with anyone else. Finally, the defendant acquiesced and sent the defendant the sexually explicit video – the very same day the defendant posted the video online to a pornographic website and shared it with several of his friends. The video remained online for three weeks before being taken down but otherwise it is not known who may still possess the video, if it exists on a local storage drive, or if it is still being privately shared.
Upon discovering this breach of trust, the plaintiff suffered tremendous personal anguish and sued the ex-boyfriend for damages under Ontario’s Simplified Procedure Rules.[5] The defendant failed to defend the action allowing the plaintiff to obtain default judgement.
NEW PRIVACY TORT RECOGNIZED
In this recent decision released January, 2016 an Ontario court again follows the lead of American privacy law to create the new privacy tort of “publication of embarrassing private facts” relying heavily on Jones v. Tsige.
The Court defined the new privacy tort as publicizing a private matter of another where (a) the matter publicized or the form of publication is highly offensive to a reasonable person, and (b) the matter is not of legitimate public concern.
Private matters that may yield the protection of this new privacy tort include sexual relationships and preferences, humiliating physical and mental illnesses, and family quarrels. The disclosure of the private matter must be made to the public – meaning the disclosure must be to the public at large and not simply disclosed privately to a social group. The facts disclosed must be private facts which are not generally known, hence their ability to be embarrassing and socially crippling.
In applying the new tort to this case the Court held that the plaintiff had proven the cause of action. The defendant had posted an intimate private video of the plaintiff to the Internet without her consent, which would be highly offensive to a reasonable person, and the video had no appreciable public interest.
The Court further determined the defendant committed the existing torts of breach of confidence and intentional infliction of mental distress. The Court awarded the plaintiff the maximum damage award available under the Simplified Procedure in the amount of $100,000 in addition to full indemnity for the plaintiff’s legal fees.
PROTECTION OF PRIVACY
As technology and social media continues to play a vital role in our lives, privacy shall continue to be threatened in new ways. The Court’s decision and recognition of the privacy tort of public disclosure of embarrassing private facts provides a powerful tool of protection in the law for victims of cyberbullying and demonstrates the willingness of the Court to recognize privacy as a material pillar of civilised society requiring protection.
[1] https://en.wikipedia.org/wiki/Revenge_porn
[2] An estimated 80% of revenge pornography pictures (“selfies”) and videos are taken by the subject themselves. In these cases, the subject may move to remove the picture or video from the host website by asserting copyright and filing a take-down notice pursuant to the Digital Millennium Copyright Act if the website is hosted in or operating under the law of the United States of America.
[3] Section 652 of the Restatement (Second) of Torts which the decisions of Jones and Doe 464533 draw upon is available here.
[4] A plain English guide to DMCA take-down notices can be accessed here.
[5] Please see this summary fact sheet on the Simplified Procedure available here.
Daniel Nashid
Barrister & Solicitor
416.892.2509
[email protected]