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

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. 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.

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.

Footnote

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

First published in MB Newsletter

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Scott Venturo Rudakoff LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Scott Venturo Rudakoff LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions