On 21 January 2016, in Doe 464533 v. ND (2016 ONSC 541) the Ontario Superior Court of Justice recognized, for the first time in Canada, the privacy tort of “publication of embarrassing private facts”.
This is the second time in the last few years that the Ontario courts have borrowed from the American Restatement (Second) of Torts to create privacy-related torts. The first instance was in the leading case of Jones v. Tsige, in which the Ontario Court of Appeal recognized for the first time a new tort called “intrusion upon seclusion” that it adopted from the American Restatement (Second) of Torts.
While it remains to be seen whether the “publication of embarrassing private facts” will gain traction in Canada, the case signals an increasing willingness on the part of Canadian courts to find civil liability for privacy breaches.
Jones v. Tsige: Canada’s First Privacy Tort
In 2012, the Ontario Court of Appeal broke new ground when it recognized the tort of “intrusion upon seclusion” in Jones. In that case, a man’s girlfriend used her credentials as a bank employee to access his ex-wife’s bank account at least 174 times over several years. The ex-wife sued upon becoming aware of the breach (Note: the Inforrm case comment here).
Although Canadian courts had previously chosen not to recognize a civil tort for invasion of privacy, the court in Jones broke with precedent and recognized the new tort: “intrusion upon seclusion”. The court essentially adopted the Restatement (Second) of Torts’ definition of the tort’s elements: (1) an intentional or reckless intrusion; (2) upon the private affairs of another; (3) without lawful justification; (4) if a reasonable person would view the intrusion as highly offensive causing distress, humiliation, or anguish. Importantly, the court held a plaintiff could succeed on an intrusion claim without showing actual economic losses and win up to C$20,000 in damages.
Jones was successful, and was awarded C$10,000.
The “intrusion upon seclusion” tort has since been recognized, at least provisionally, in other Canadian jurisdictions such as Nova Scotia and Newfoundland. Several class actions have been filed asserting intrusion upon seclusion as a cause of action.
Doe 464533 v. ND: An Ontario Court Recognizes Another U.S. Privacy Tort
In January 2016, Ontario courts have again drawn from the American Restatement (Second) of Torts to create a new privacy tort in Canada.
In Doe 464533 v. ND (2016 ONSC 541) the Ontario Superior Court found civil liability for the online publication of an intimate video by an ex-boyfriend.
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.
In its default judgment ruling, the court relied heavily on the leading decision of the Ontario Court of Appeal in Jones. 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 (1) publicizing a matter concerning the private life of another, (2) if the matter publicized or the act of publication is highly offensive to a reasonable person and (3) 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 awarded the plaintiff C$100,000 in damages, which is the maximum available under Ontario’s Simplified Procedure Rules. The court also awarded the plaintiff full indemnity for her legal fees.
Ontario Following U.S. Lead on Privacy Law
The Doe 464533 decision leaves open questions respecting the scope of the “publication of embarrassing private facts” tort. Along with Jones v. Tsige, however, the case appears to signal an increasing willingness to expand the scope of privacy torts in Canada and to follow the United States in doing so.
It is not surprising to see the increased recognition and use of privacy torts in Canada. The recent trend in Canada follows more established trends in other jurisdictions. In the U.K., notably, privacy claims have risen markedly since the turn of the century. What is surprising is that rather than take their historical path and follow the U.K. common law, Canadian courts have taken their guidance from the American Restatement (Second) of Torts.
Ryder Gilliland is a partner and Thomas Lipton an Associate at Blakes, Toronto
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