In the case of ES v Shillington (2021 ABQB 739) by Madam Justice Avril Inglis of Alberta’s Court of Queen’s Bench in awarded a total of total $460,000 of damages for assault, sexual assault, battery, and intentional infliction of mental distress, including $155,000 for damages suffered as a result of the defendant sharing sexual images of the plaintiff on the internet without her consent.
These damages are awarded under the new “public disclosure of private fact” torts created by the judgment which may prove to be a major development in common law torts in Canada.
The plaintiff and defendant were in a steady romantic relationship from 2005 to 2016 where they had two children together. However, due to repeated acts of physical and sexual assault by the defendant, the plaintiff left left to live in a shelter for women at risk of domestic violence in August 2016 and they ended their relationship in November 2016.
During their relationship, the plaintiff would share images of her engaging in sexual activity with the defendant as a token of affection. They came to a mutual understanding that these images would not be shared or published anywhere. Despite this, the defendant confessed of uploading the images online and through searching the defendant’s social media accounts, the plaintiff found many of her private photographs readily available on several pornography websites. The plaintiff found images dating back to 2006 and until as recent as early 2021, she was still able to find her images on the internet.
The photos were so widespread that the plaintiff was “being recognized in them by a neighbour that spoke to her sexually”. This led to significant emotional suffering, depression, humiliation, and severely impacted her general wellbeing. In addition to the sharing of her explicit photos, the defendant also often engaged in sexual assault. In one instance in November 2016, the defendant grabbed her, pressed her against a wall, ripped her shirt open, and then proceeded to aggressively handle her breasts in public.
In her judgment, Inglis J accepted the plaintiff’s argument that a new “public disclosure of private information” tort should be recognised as a separate cause of action from the existing common law and statutes. The Judge outlined the test for the new tort to be:
- The defendant publicized an aspect of the plaintiff’s private life;
- The plaintiff did not consent to the publication;
- A reasonable person in the same position as the plaintiff would be highly offended by the publication; and
- The publication was not of legitimate concern to the public.
The two main reasons for creating a new tort instead of relying on the existing Protecting Victims of Non-Consensual Distribution of Intimate Images Act 2017 are the narrow definition of words used in the statute such as “intimate image” requiring nude images exposing genital or anal regions or breasts, and that statutes in Canada cannot be retroactively applied.
Therefore, even if the statute was applicable based on the facts, without the recognition of this new tort in common law, the plaintiff would have had no cause of action.
In addition, the plaintiff also wanted to rely on the existing “breach of confidence” tort, but as Inglis J explains in her judgment “the element of specific confidentiality at the time of sharing of the information” of the tort would negate most scenarios as the photos were not communicated in such confidence.
After assessing the facts against previous case law, Inglis J awarded general damages of $80,000, aggravated damages of $25,000, and punitive damages of $50,000, which are the awards that the plaintiff sought from the court.
In this case the plaintiff successfully argued that the new public disclosure tort should be created and recognised as a separate cause of action from the pre-existing sexual assault and infliction of mental distress torts. The defendant was not present or represented so the Court hear no contrary arguments. The Judge, nevertheless, found the arguments for a new tort compelling.
The case demonstrates the importance of adapting the law to the rapidly changing society. In the age where the internet is a part of almost everyone’s lives, the fact that a new common law tort had to be created covering similar factual scenarios to a recent statute shows the importance of flexibility. This case may be merely a single droplet in an ocean of possible cases relating to media on the internet that have yet to be disputed in courts.
Craig Xu is an aspiring solicitor, who is currently a 2nd year law student at UCL