Ontario Superior Court creates new privacy tort in revenge porn case

Justine Johnston -

On January 21, 2016, the Ontario Superior Court released its decision in Doe 464533 v D, 2016 ONSC 541, recognizing for the first time the new privacy tort of public disclosure of private facts. The Court’s decision explicitly expands the common law protection of privacy and demonstrates how courts can recognize and provide relief to victims of cyberbullying.

The public disclosure of private facts tort arose from an egregious case of revenge porn cyberbullying. The defendant posted a sexually explicit video of the plaintiff under the user submission section of a pornographic website. When the plaintiff became aware that the video had been posted online, the defendant admitted to uploading it and removed it from the website. Although the video was “removed”, the Court acknowledged that there is no way to know how many times it was viewed or downloaded or if and how many times it may have been copied onto other media storage devices or recirculated. 

 In reaching its decision, the Court recognized the important role technology plays in everyday life, how predators and bullies can use technology to victimize others and the devastating impact cyberbullying has on victims. These ideas were similarly addressed in the 2012 Ontario Court of Appeal decision Jones v Tsige, where privacy rights were identified as worthy of Charter protection and the tort of invasion of privacy in the context of the tort of intrusion upon seclusion was recognized. Following Jones v Tsige, the Court deemed William L. Posser’s American legal article “Privacy” as authoritative and adopted his tort of “public disclosure of embarrassing private facts about the plaintiff,” with minor modifications.

Accordingly, the tort of public disclosure of private facts contains the following three elements: 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 would be highly offensive to a reasonable person, and is not of legitimate concern to the public.

Here, the Court found the cause of action was made out because  the defendant posted a privately-shared and highly, personal intimate video recording of the plaintiff on the Internet, thereby making a private aspect of the plaintiff’s life public, such that a reasonable person would find highly offensive and there was no legitimate public concern for him to do so. The Court also found the defendant committed the existing torts of breach of confidence and intentional infliction of mental distress. The Court awarded the plaintiff $105,500 in damages and interest, and granted a permanent injunction prohibiting the defendant from contacting the plaintiff or members of her immediate family.

The continuing integration of technology into everyday life has many implications for privacy. The Court’s decision and recognition of the public disclosure of private facts tort covers a gap in the law that will offer recourse to victims of egregious forms of cyberbullying, including revenge porn. 

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