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Privacy Through the Ages – A Review of Ontario’s Privacy Laws (Part 3)

5 minute read

Part 3: Revenge Porn, Punished

Jane Doe 72511 v NM, 2018 ONSC 6607

In this case, the privacy tort of public disclosure of embarrassing private facts was recognized in Ontario.

Factual background

In this motion for default judgment, the plaintiff claimed against her former boyfriend (NM) and his parents for damages relating to his abusive behavior and posting, without Jane’s knowledge or consent, of a sexually-explicit video of her on a pornographic website.

Jane and NM were in a relationship from December 2012 until March 2014. In June 2016, Jane learned that in March 2014, NM had posted a sexually explicit video of them on a pornography website. Jane’s face was clearly visible in the video, which was linked to ten other pornographic websites. Jane managed to convince the website administrator to remove the video; however, by that time, it had already been viewed over 60,000 times. It is not known how many times it was downloaded or shared.

Jane sought $50,000 in general damages, $25,000 in aggravated damages, and $25,000 in punitive damages from NM for posting the pornographic video online. She also sought an order to retroactively change the title of the proceedings to anonymize her name and an order to seal her affidavit in support of the motion. Finally, Jane sought an order directing NM to destroy all intimate photos and recordings of her and prohibiting him from publishing or disclosing any intimate recordings or images of her.

Jones v Tsige as the Basis for Recognizing the Tort of Public Disclosure of Embarrassing Private Facts

The Court held that the tort of public disclosure of embarrassing private facts should be recognized in Ontario. They did so relying on the same four rationales enumerated in Jones v Tsige for the tort of intrusion upon seclusion.

First, privacy interests are protected under the Charter, and the common law is to be developed and applied in a manner consistent with Charter values.

Second, recognizing the tort of public disclosure of embarrassing private facts would not improperly interfere with existing privacy regimes in federal and provincial legislation.

Third, recognizing this tort would be a necessary, incremental step to the common law’s need to respond to issues created by technology.

Fourth, the Court held that in the absence of the recognition of this tort, Jane would be wrongly deprived of a remedy in the face of a significant and intentional breach of her privacy rights.

How to Prove Your Case

The Court held that in order to establish the tort of public disclosure of embarrassing private facts, a plaintiff must show the following:

  1. The defendant publicized an aspect of the plaintiff’s private life;
  2. The plaintiff did not consent to the publication;
  3. The matter publicized or its publication would be highly offensive to a reasonable person; and
  4. The publication was not of legitimate concern to the public.

NM’s act of posting a sexually explicit video of Jane online without her consent easily met each of these four elements.

The Court refused to follow the $20,000 damages limit set in Jones v Tsige because the breach of Jane’s privacy rights was much more serious than an intrusion upon someone’s seclusion. The posting of the video was an affront to Jane’s dignity and personal autonomy. It affected her psychological well-being, reputation, and ability to form trust and relationships with others, which the Court equated much more closely with sexual assault than intrusion upon seclusion.

In the result, the Court awarded Jane $50,000 in general damages, $25,000 in aggravated damages, and $25,000 in punitive damages. The Court also granted her orders to retroactively change the title of the proceedings, seal her affidavit, and direct NM to destroy all intimate photos and recordings of Jane while prohibiting him from ever disclosing any intimate recordings of her.

Discussion

With this case, Ontario had adopted three out of the four privacy-related common law torts. Thirteen months later, the four-tort catalogue was made complete in the case of Yenovkian v Gulian.

Privacy Through the Ages is a 5 part series, and you just read part 3 of 5. Read the other parts on our blog by clicking on the links below:

Privacy Through the Ages – A Review of Ontario’s Privacy Laws (Part 1)

Privacy Through the Ages – A Review of Ontario’s Privacy Laws (Part 2)

Privacy Through the Ages – A Review of Ontario’s Privacy Laws (Part 4)

Privacy Through the Ages – A Review of Ontario’s Privacy Laws (Part 5)

If you’ve experienced a privacy breach or cyber incident similar to the one discussed above, or you need counsel on a privacy law matter, reach out to Jennifer Hunter and Jennifer O’Dell to discuss your options.

As accomplished litigators and members of our Privacy, Data and Information Security Group , they have the knowledge and expertise to resolve legal issues relating to conducting business or interacting socially on the internet. They also have extensive experience in representing clients in the prosecution and defense of privacy and cyber tort claims to help you navigate your rights, protect your interests, and get results to help you move forward.

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Jennifer O'Dell

We are here to help.

Do you have any questions about your unique scenario? Feel free to reach out directly by visiting my Lerners Profile View My Full Profile