Ruling on non-consensual distribution of intimate images uses U.S. "Publication of Embarrassing Private Facts" claim
In January 2016, the Ontario Superior Court of Justice issued a
decision further expanding the scope of privacy-related common-law
torts. In Jane Doe 464533 v. D. (Jane
Doe)1, Justice Stinson considered the
plaintiff's claims for breach of confidence, intentional
infliction of mental distress and invasion of privacy after the
defendant posted an intimate video of her online and showed it to
members of their social circle.
The New Tort
In assessing the claim for invasion of privacy, Justice Stinson
returned to the 2012 Ontario Court of Appeal decision in Jones
v. Tsige2, and in particular the Court of
Appeal's reliance on the four privacy torts set out in the
American Restatement (Second) of Torts. In Jones,
the Court found that the tort of intrusion upon seclusion was most
relevant to the case before it. In Jane Doe, Justice
Stinson found instead that another of the American
torts—"public disclosure of embarrassing private facts
about the plaintiff"—more closely matched the facts at
As adapted by the Court, the test for the new tort requires
the defendant gave publicity to a matter concerning the private
life of the plaintiff;
the matter publicized, or the act of publication itself, would
be highly offensive to a reasonable person; and
the matter publicized, or the act of publication, is not of
legitimate concern to the public.
The Court found that the tort had been made out in this case and
awarded the plaintiff a total of $50,000 in general damages (based
on evidence of severe emotional and psychological harm), as well as
$25,000 in punitive and $25,000 in aggravated damages. This
$100,000 award was a conscious departure from the informal $10,000
cap established by the Court of Appeal in Jones.
Notably, the Court did not assess damages under the same
framework of moral or nominal damages for humiliation and distress
that was used in Jones and which has been consistently applied in
Federal Court decisions for violations of the Personal Information
Protection and Electronic Documents Act (PIPEDA). Instead, Justice
Stinson applied the longstanding framework used to assess damages
for psychological harm arising from sexual
Much like Jones, this expansion of the common law of
privacy arose from the intentional conduct of one individual toward
another in the context of a romantic relationship. Although several
cases, including class actions, attempting to apply these
precedents to privacy breaches arising in the context of commercial
relationships are pending before courts across Canada, none of them
have been decided on their merits. Similarly, in the public sector,
the Federal Court has certified a class action3 against
the Government of Canada alleging the same tort recognized in
Jane Doe, using the name "publicity given to private
life," but that case is far from any decision on the merits.
Accordingly, we expect that the scope of this tort will be tested
in various novel contexts. One obvious area of potential concern
will be intra-company romantic relationships and the scope of
vicarious liability, particularly if corporate hardware (including
mobile devices) is involved.
This decision also raises questions about potential conflicts
between privacy and freedom of expression. It is likely that these
conflicts will be resolved on the basis of what the courts conclude
constitutes a "legitimate concern to the public." As
a result, we can expect them to draw from existing jurisprudence in
the areas such as copyright infringement or defamation (among
others). Certainly this tort adds a dimension of uncertainty to the
notion that any true fact may be published with impunity.
1 2016 ONSC 541
2 2012 ONCA 32
3 John Doe v. Canada, 2015 FC 916
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