Doe 464533 v. N.D3 and the new tort of Public Disclosure of Private Facts
On January 21, 2016, the Ontario Superior Court released the decision in Doe 464533 v. N.D. representing the first Canadian decision recognizing the new cause of action of “public disclosure of private facts”, an invasion of privacy tort.
The plaintiff had sent the video to the defendant, who was her on-again-off-again boyfriend, on the understanding that it was private.
In this case, the defendant posted an intimate video of the plaintiff on a pornographic website without her knowledge or consent. The plaintiff had sent the video to the defendant, who was her on-again-off-again boyfriend, on the understanding that it was private. When confronted by the plaintiff, the defendant admitted to posting the video and subsequently removed it from the website. Despite the removal, the plaintiff claimed to have suffered mental injuries as a result of the defendant's actions and sought compensation for same.
Justice Stinson found that the defendant's actions caused significant psychological and emotional harm to the plaintiff and awarded her compensatory general damages, aggravated damages and punitive damages totaling $100,000.4 Although the video was removed, Justice Stinson recognized that there was no way to know how many times it was viewed or downloaded or copied elsewhere. In making his decision, Justice Stinson recognized the current role of technology in perpetuating the invasion of privacy.
The Honourable Justice Stinson cited American legal scholar William L. Prosser, who described the tort of public disclosure of private facts in his article “Privacy”.5 Justice Stinson essentially adopted the elements of the cause of action enumerated by Professor Prosser, namely: 1) the disclosure of the private facts must be a public disclosure, not a private one; 2) the facts disclosed to be public must be private facts and not public ones; and 3) the matter publicized or the act of the publication would be a) highly offensive to a reasonable person, and b) is not of legitimate concern to the public.6
Potential Impact of Decision for Insurer's
With this decision, the court took a step towards responding to the increased awareness regarding the rise of social media and cyberbullying. At the same time, the recognition of this new privacy tort as a cause of action impacts certain insurers and gives rise to a new potential area of exposure. As demonstrated, victims of cyberbullying may now file civil actions against the perpetrator alleging the public disclosure of private facts where private facts, videos, pictures or other private information are shared. If the perpetrator is a child or dependent, then the plaintiff may also commence a claim against the parents of the cyberbully for negligent supervision when there is a failure to control their child or dependent and fails to prevent the harm caused by the child or dependent. Such a negligence claim against the parents has been held to be a distinct claim from the intentional tort claim against the child7 and not derivative from the child's intentional acts in certain circumstances.8
If the parents are named in the action, then their homeowners or tenant insurance policy insurer may have to respond.
If the parents are named in the action, then their homeowners or tenant insurance policy insurer may have to respond. As a homeowner's insurance policies generally includes both property coverages and liability coverages, including personal liability coverage for the insured's personal activities worldwide, insurers could have a separate duty to defend.9 As the duty to defend is triggered by the true nature of claims alleged in the pleadings,10 it is not relevant, at the initial stage of the inquiry, whether the parents will be proven to be negligent.
It is true that the personal liability coverage from a homeowners' policy may very likely contain an exclusion clause against providing coverage for an insured's intentional or criminal acts, thereby excluding coverage for the child's intentional cyberbullying, or cyber public disclosure of private acts. However, the exclusion clause may not necessarily exclude coverage for claims of negligence or claims of failure to act or supervise, as against the parents.
For example, in Durham District, a negligence claim was advanced against the parents for failing to properly supervise and discipline their son, who had set fire to the contents of his high school's plastic recycling bin. In this case, the Ontario Court of Appeal interpreted the exclusionary clause in the homeowner's insurance policy narrowly and construed the ambiguity against the insurer-drafter to hold that negligence claims were not excluded by the clause. Therefore, the insurer had a duty to defend the parents against the negligent supervision claim against them, while the claim against the child's intentional act was excluded from coverage.
This contrasts with the decision in Unifund Assurance Co. v. E.(D.),11 a recent decision from the Court of Appeal that involved a negligence claim against the parents of a minor for their failure to investigate and take reasonable care to prevent the bullying that their daughter participated in against another minor at their school. As the parents' homeowner's policy specifically and unambiguously excluded the “failure of any person insured to take steps to prevent... psychological or emotional abuse”12, the Court of Appeal held that the negligent supervision claim against the parents was separately and specifically excluded from coverage.
Therefore, absent a specific exclusion clause, a homeowner's insurance policy may have to respond to negligent supervision claims against the parents where there is a cause of action against their child for the public disclosure of private acts. In Doe 464533, had the plaintiff instituted proceedings against the defendant's parents for their failure to exercise reasonable supervision at the time of the posting of the video, then their homeowner's policy insurer may very well have had to defend the parents' claims even if the child's intentional acts were excluded from coverage. In light of this, it may be prudent for insurers to reexamine the exclusions clauses in their homeowner's policy to address the potential for these claims against the parents given the realities of the world that we currently live in and the potential for an increase in the number of claims that insurers could be asked to respond to.
1 Perreault, S, Statistics Canada, Self-reported Internet Victimization in Canada, 2009, (15 September 15, 2011) online:
2 See e.g. CBC News, "B.C. girl's suicide foreshadowed by video", (11 October 2012) online: CBC News
3 Doe 464533 v. N.D, 2016 ONSC 541.
4 Note that this was the amount claimed by the Plaintiff.
5 William L. Prosser, “Privacy”, 48 Cal. L. Rev. (1960).
6 For further details on the decision, see previous McCague Borlack article “New Privacy Tort Recognized in Ontario: Jane Doe 464533 v. X” published in February 2016
7 Durham District School Board v Grodesky, 2012 ONCA 270 at para 14; and Godonoaga (Litigation Guardian of) v Khatambakhsh (Guardian of) (2000), 49 OR (3d) 22 (Ont. C.A.) at para 20.
8 See Durham District, supra note 5.
9 See Godonoaga, supra note 4.
10 Non-Marine Underwriters, Lloyd's of London v Scalera,  1 SCR 551.
11 2015 ONCA 423.
12 Ibid. at para 24.