The Ontario Superior Court of Justice in Jane Doe 464533 v ND (2016 ONSC 541) has expanded the tort of privacy to incorporate the publication of embarrassing facts.  It is a very significant decision and an advance in the development of the law of privacy, in Canada at least.  It is also a key case considering the egregious practice of revenge porn.  The commentary will be quite useful in the development of the tort in relation to this type of fact situation.

FACTS

The parties met while at high school and started dating while they were both in Grade 12.  They stopped dating but continued to see each other romantically throughout the second half of 2011. Towards the end of  2011, they were both 18 years old [5].

In August 2011, the defendant began asking the plaintiff to make a sexually explicit video of herself to send to him. She initially  she refused to do so. In September 2011, the plaintiff was living in another city,  attending university. She and the defendant communicated regularly by Internet, texting, and telephone and continued to see each other when she returned to visit her parents’ home [6].

After repeated requests and him sending her intimate pictures and videos of himself she reluctantly recorded an intimate video of herself in November 2011. Before she sent it to the defendant she texted him, telling him she was still unsure but he convinced her to relent, reassuring her that no one else would see the video [7].

In early December 2011, the plaintiff learned that:

• the defendant had posted the video she sent him on an Internet pornography website under the “user submissions” section of the website, titled “college girl pleasures herself for ex boyfriends (sic) delight.”
• the defendant had been showing it to some of the young men with whom they had attended high school.
• the video had been posted online on the same day she had sent it to him, and that its existence had become known among some of her friends [8].

The plaintiff was devastated, humiliated and distraught to discover what the defendant had done. She contacted the defendant’s mother and told her what had occurred. The mother determined that the defendant had posted the video, and advised the plaintiff that he had removed it from the website. The police were contacted but, in light of the plaintiff’s age, they declined to become involved [9].

The video was available online for approximately 3 weeks, before it was “removed” [10].

As a result of the defendant’s conduct the plaintiff:

• had to defer her Christmas exams because she was physically and mentally distraught over learning that the video had been posted online.
• was so upset that she could not sleep and barely ate anything. She could not focus on school and skipped class and stayed in bed [11].
• barely showered for days on end when she went home over the Christmas break, never went out, and stayed in bed for most of the entire day [11].
• could not fall asleep until between 4 and 6 a.m. because she was constantly thinking about what had happened.
• had no appetite and would go days barely eating [11].
• had such poor mental health that her mother took her to a crisis intervention centre at a hospital.
• cried for most days and “had no emotion or life”  and “felt like a very cold person and felt like everything in my life and all of my beliefs and morals had been stolen from me.” [12]
• saw a counsellor at her school for over a year and a half to deal with the emotional fallout from the posting of the video[13].
• experienced serious depression and emotional upset[13].
• on the occasions since the incident when she has encountered the defendant she has become emotionally distraught and unable to cope, sometimes collapsing in such situations resembling “panic attacks”. According to the plaintiff, when they have made eye contact the defendant has had “an insolent look on his face, as if he is proud of himself” and he has shown no remorse [13].
• remains conscious of the fact that the video was viewed by acquaintances of the defendant, that its existence is known to other members of her former social circle and has caused harm to her reputation [14].
• is emotionally fragile and worried about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships [14].
• continues to be distraught about the incident and afraid that these feelings will haunt her for a long time to come[14].
• remains worried that the defendant’s actions have put her future career in jeopardy should news of these events surface again [15].

DECISION

 The Court found, at [19], that there are:

..both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.

Breach of Confidence

The Court applied the elements for a breach of confidence claim (a tort claim in Canada) being, as summarised at [21], that:

a)   that the information must have the necessary quality of confidence about it;

b)   that the information must have been imparted in circumstances importing an obligation of confidence; and

c)   that there must be unauthorized use of that information to the detriment of the party communicating it

 and found that:

•  the video created by the plaintiff meets the first test, being confidential information as it was private and personal to the plaintiff and was not (until it was shared on the Internet and otherwise by the defendant) publicly available [22].
• the circumstances that led to its creation and communication of the video clearly demonstrate that it was communicated to the defendant on the express basis that he would treat it as confidential [23]; and
• there was no rational basis to distinguish between economic harm and psychological, emotional and physical harm, such as was experienced by the plaintiff and in any event, the possible future adverse impact on the plaintiff’s career and employment prospects arising from the possibility that the video may someday resurface, also demonstrates actionable harm [24].

Intentional infliction of mental distress

The Court also considered the test for a claim of intentional infliction of mental distress which is:

(i)            conduct that is flagrant and outrageous;

(ii)         calculated to produce harm; and,

(iii)         resulting in a visible and provable injury.

Even though it was not required to find a malicious purpose the court inferred that the defendant was motivated by malice [27].

Not surprisingly the court, in noting that the defendant knew that the plaintiff had been reluctant to make the video and was hesitant to share with him such intimate and private images of herself and that on the very day she forwarded it to him he posted it online and also shared the video with his friends found the actions to be a clear violation of the promise he made to the plaintiff and as well as a breach of the trust in him that motivated her to prepare and provide the video [28]. It was found to be flagrant and outrageous conduct [29].

The court found that it was foreseeable that posting an intimate video of a young woman on a public website, and sharing the video with peers, would cause the person extreme emotional upset and understandable psychological distress [31].

The court found that defendant’s conduct caused significant psychological harm. The plaintiff was taken to a crisis centre due to the extent of her mental upset in the immediate aftermath, she suffered from depression, underwent extensive counselling and remains emotionally fragile and vulnerable and is apprehensive about her future [32]. The Court found the defendant’s actions caused in the plaintiff a visible and provable illness [33].

Invasion of Privacy

The Court noted that in Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal for Ontario recognized the existence of the tort of invasion of privacy in the context of intrusion upon seclusion and while that case dealt with a significantly different fact situation many of the comments made there were germane to this case [34].

The key points the court made regarding Jones were:

• that it recognised as authoritative a seminal American legal article on the subject by William L. Prosser, “Privacy” noting that there was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. being:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness [36]

•  that “[t]he tort that is most relevant to this case, the tort of ‘intrusion upon seclusion’, is described ..as: ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person [37];
• that non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, ‘even though there is no publication or other use of any kind’ of the information obtained which comprise the following elements:

•     there must be something in the nature of prying or intrusion;

•     the intrusion must be something which would be offensive or objectionable to a reasonable person;

•     the thing into which there is prying or intrusion must be, and be entitled to be, private; and

•     the interest is primarily a mental one [38].

•  Charter jurisprudence identifies privacy as being worthy of constitutional protection and integral to an individual’s relationship with the rest of society and the state [39];
• the explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff’s seclusion [39]…

The Court noted that while the facts of this had some of the hallmarks of the tort of “intrusion upon seclusion”, they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.”  being:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” [41]

which was elaborated, at [42], as:

Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.

The features of this tort were, at [43]:

•    the disclosure of the private facts must be a public disclosure, and not a private one;

•    the facts disclosed to the public must be private facts, and not public ones; and

•     the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.

The Court stated that in the electronic and Internet age private information, private facts and private activities may be more and more rare, but they are no less worthy of protection [44].

The Court adopted, at [46], as the elements of the cause of action for public disclosure of private facts:

..the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]

The Court found in the plaintiff making out the cause of action that:

• the defendant in posting on the Internet a privately-shared and highly personal intimate video recording of the plaintiff he he made public an aspect of the plaintiff’s private life;
• a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive.
• there was no legitimate public concern in the defendant doing so [47].

The Court awarded the plaintiff:

• general damages at $50,000 [58];
• aggravated damages of $25,000 [59]; and
• punitive damages of $25,000 [63].

The court ordered that the defendant be prohibited from publishing, posting, sharing or otherwise disclosing in any fashion any intimate images or recordings of the plaintiff [64] and be permanently prohibited from communicating with the plaintiff or members of her immediate family, either directly or indirectly [65].

ISSUE

The Court has adopted welcome flexibility in expanding the tort of privacy to allow for the public disclosure of embarrassing facts.  It is entirely logical given the facts in question.  In Australia it is unlikely that the courts will adopt a tort of privacy especially with the High Court’s decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd which ties the development of the intermediate appellate jurisdiction.

The focus has been the expansion, very slow development at that, of the equitable breach of confidence action.  In Wilson v Ferguson, which I posted on here, the Supreme Court of Western Australia considered a not dissimilar fact situation in that it involved a female partner’s intimate images being posted on line by an ex partner.  The award of damages in Wilson, of $43,404 demonstrates the relatively parsimonious awards given in Australia.  It is a major flaw in the development of the law to date.