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New Privacy Tort Recognized in Ontario: Jane Doe 464533 v. X

February 2016

First published in MB Newsletter

The relentless expansion of the internet into all facets of our lives has created many opportunities for the advancement of the law. Cyberspace is the modern frontier for the law to tame. On any given day, the facets of the internet are built upon by the contributions of billions of people. As a result of its directly democratic nature, it contains examples of the full spectrum of human behaviour that runs from selfless altruism to selfish insecurities and hatred.

Justice Stinson's recent decision in Jane Doe 464533 v. X (the defendant's name is subject to a publication restriction) is a step in remedying the excesses of internet use.

The plaintiff is a young woman who was romantically involved with the defendant, a young man, in high school. They remained romantically involved after the plaintiff moved away to attend university. During this separation, the defendant pressured the plaintiff to make an intimate video for him. Though she had misgivings, the plaintiff agreed. A month after she sent the video, the plaintiff learned that the defendant posted the video on a pornographic website. The defendant also showed the video to some of the plaintiff's former high school classmates.

Justice Stinson explains, in considerable detail, the psychological and emotional harm that the plaintiff suffered due to the defendant's actions. I applaud Justice Stinson for including such detail in his decision, as it crystallizes an area that is often shrouded in euphemism.

The plaintiff commenced the action in the Superior Court of Justice and requested compensatory damages, punitive damages, and a permanent injunction to prevent the defendant from performing the same acts in the future.

The defendant never filed a statement of defence. He was originally represented and his lawyer attempted to negotiate with the plaintiff. The defendant later represented himself and did not attend to oppose the plaintiff's motion for default judgment.

What is interesting about this case is that Justice Stinson granted the relief sought on the basis of the common law.

What is interesting about this case is that Justice Stinson granted the relief sought on the basis of the common law. Though the Legislature of Manitoba recently created a civil right of action for "non-consensual distribution of intimate images", no other provincial legislature has followed suit.

Justice Stinson held that the plaintiff had three tortious causes of action:

  1. Breach of confidence,
  2. Intentional infliction of mental distress, and
  3. Invasion of privacy.

With respect to breach of confidence, Justice Stinson emphasized that the plaintiff's decision to send the video was premised on the defendant's assurance that he alone would view it. Justice Stinson referred to the Manitoba case of Grant v. Winnipeg Regional Health Authority, [2015] M.J. 116 (C.A.) and held that the three elements of the tort of breach of confidence are:

  1. That the information must have the necessary quality of confidence about it;
  2. That the information must have been imparted in circumstances importing an obligation of confidence; and
  3. That there must be unauthorized use of that information to the detriment of the party communicating it.

Justice Stinson held that these elements were met in this case.

With respect to intentional infliction of mental distress, Justice Stinson held that the elements of the tort are:

  1. Conduct that is flagrant and outrageous;
  2. Is calculated to produce harm; and,
  3. Results in a visible and provable injury.

The defendant's breach of confidence was a flagrant and outrageous act that was a deep violation of trust.

Justice Stinson of course held that these elements were met. The defendant's breach of confidence was a flagrant and outrageous act that was a deep violation of trust. In breaking that trust, the defendant must have either intended to cause harm or have known that it was likely that his acts would cause harm.

The third tort, invasion of privacy, was pioneered in Ontario by the Court of Appeal's decision in Jones v. Tsige, 2012 ONCA 32.1 However, in this case, Justice Stinson takes the Court of Appeal's judgment a step further. He noted that the Court of Appeal relied on American William Prosser's four tort formulation of a right to privacy:

  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.

While the Court of Appeal's judgment focused on Prosser's first tort, intrusion upon seclusion, Justice Stinson felt that Prosser's second tort, public disclosure of embarrassing private facts, was more appropriate for this case. He cited the American Restatement (Second) of Torts (2010) and held that the elements of the tort are that a person publicizes the private affairs of another and the matters publicized would be highly offensive to a reasonable person and are not of legitimate concern to the public. Justice Stinson made one modification to the elements found in the Restatement and added that the "act of the publication" of the private facts, and not merely the private facts themselves, would be highly offensive to a reasonable person. This is the first time a tort of this nature has been recognized in Ontario.

Having established that the three torts were made out in this case, Justice Stinson turned to the quantum of damages. Justice Stinson awarded $50,000 for general damages (based on evidence of psychological and emotional harm), $25,000 for aggravated damages, and $25,000 for punitive damages.

Though Justice Stinson's decision is noteworthy, it was made in the absence of counterarguments. Future decisions may have to grapple with the interplay between the right to privacy and freedom of expression. That said, the large damages award, Justice Stinson's specific discussion of the harm that the plaintiff suffered, and the shocking nature of the defendant's actions suggest that this decision will be a powerful precedent.

Read Justice Stinson's full Judgement.

1 See previous McCague Borlack article Jones v. Tsige published in a January 2014 article.


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