In Doe 464533 v. X (Doe 464533), the Ontario Superior
Court of Justice (Court) found civil liability for the online
publication of an intimate video by an ex-boyfriend. The case is
significant because it signals the continuing expansion of privacy
torts in Ontario, in this case through the recognition, for the
first time in Canada, of the tort of "publication of
embarrassing private facts."
The plaintiff and the defendant were young adults who had had an
on-again, off-again romantic relationship. The defendant spent
several months coaxing the plaintiff to send him a sexually
explicit video of herself. Eventually, the plaintiff created such a
video and sent it to the defendant after he promised he would not
share it with anyone. The same day, the defendant posted the video
to an internet pornography site and showed it to several of the
plaintiff's acquaintances. The video was taken down after being
online for about three weeks. It is not known how many times the
video had been viewed or downloaded, whether it had been copied
onto storage devices, or if it had been otherwise
The case was brought under Ontario's Simplified
Procedure Rules. As the case was not defended, the plaintiff
moved for default judgment.
NEW PRIVACY TORT RECOGNIZED IN ONTARIO
In its default judgment ruling, the Court relied heavily on the
leading decision of the Ontario Court of Appeal in Jones v. Tsige, which recognized —
for the first time in Canada — the tort of "intrusion
upon seclusion." The Court decided the facts of this case did
not fit the tort of "intrusion upon seclusion", but
rather fit into a second privacy tort recognized in the United
States called "publication of embarrassing private
The Court defined the new tort as publicizing a matter
concerning the private life of another, if the matter publicized or
the act of publication is highly offensive to a reasonable person
and the matter is not of legitimate public concern. Private matters
protected by the tort could include sexual relationships, family
quarrels, or humiliating illnesses. The disclosure of the private
facts must be a public disclosure — meaning the disclosure
must be to the public at large, as opposed to a private disclosure
to a small group. The facts disclosed must be private facts —
meaning not facts that are generally known. The Court noted that
although private facts in the Internet and social media age are
increasingly rare, they remain worthy of protection.
The Court held the plaintiff had proven this cause of action, by
showing that the defendant had posted an intimate video of the
plaintiff on the Internet without her authorization, which a
reasonable person would find to be highly offensive, and because
there was no legitimate public interest in the video.
The Court also found the plaintiff had made out claims under the
pre-existing torts of breach of confidence and intentional
infliction of mental distress.
The Court awarded the plaintiff C$100,000 in damages, which is
the maximum available under the Simplified Procedure
Rules. The Court also awarded the plaintiff full indemnity for
her legal fees.
PRIVACY TORTS CONTINUE TO EXPAND
How much traction the new tort of "publication of
embarrassing private facts" will gain in Ontario and the rest
of Canada remains to be seen. The Doe 464533 decision
leaves open questions respecting the scope of the tort. Along with
Jones v. Tsige, however, the case appears to signal an
increasing willingness to expand the scope of privacy torts in
Canada. This raises the prospect of additional privacy torts being
recognized and the scope of civil liability for privacy breaches
continuing to expand.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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