Following the 2012 decision of Jones v Tsige ("Jones"), there has been judicial debate in Canada over the recognition and adoption of common law privacy torts, such as the tort of intrusion upon seclusion.1 Recently, the Ontario Superior Court of Justice in Doe v D ("Doe") expressly recognized the tort of "public disclosure of private facts" to expand the scope of privacy protection in Canadian common law.2
In December of 2011, the Plaintiff in Doe learned that the Defendant, her ex-boyfriend, had posted a private video she had sent him onto a pornography website. The video was available online for approximately 3 weeks.3 The Plaintiff brought a default judgment motion for damages and injunctive relief against the Defendant for posting the intimate video without her knowledge or consent.
In its decision, the Ontario Superior Court of Justice opined that Doe may be the first case in which a victim sought civil damages on these or similar facts.4 Justice Stinson stated that courts "can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its reputation."5 Justice Stinson ultimately found that the Plaintiff established a cause of action for breach of confidence, intentional infliction of mental distress, and importantly, invasion of privacy.
Another Common Law Privacy Tort Recognized: The Tort of Public Disclosure of Private Facts
In Doe, Justice Stinson reviewed the analysis of the Court in Jones, and particularly the American scholarship cited therein regarding privacy torts. The tort of invasion of privacy, also known as the tort of intrusion upon seclusion, was first recognized in Canada by the Ontario Court of Appeal in Jones.6 The Doe Court found support in Canadian and American jurisprudence for the tort of public disclosure to be introduced and applied in this case.
Both the Doe and Jones decisions referenced William L. Prosser's seminal legal article which described four common law privacy torts in the United States, including the tort of intrusion upon seclusion, as well as the tort of "public disclosure of embarrassing private facts about the plaintiff."7 Justice Stinson found that, while the facts in Doe bore some of the hallmarks of the tort of intrusion, they were more appropriately fitted under the tort of public disclosure. The Court adopted the elements of the cause of action of this tort as stated in the United States' Restatement (Second) of Torts (2010), and made only minor modifications.8 Per Justice Stinson, the elements of the tort of public disclosure of private facts are as follows:
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
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.9
Ultimately, the Court held that a reasonable person would find that the Defendant's actions of posting a privately-shared and highly intimate video recording of the Plaintiff on the Internet would be making public an aspect of the private life of the Plaintiff, and that a reasonable person would find such unauthorized public disclosure to be highly offensive.10 The Plaintiff was awarded damages in the amount of $100,000, and was granted injunctive relief.
How Far Will the Tort of Public Disclosure Go in Canada?
Notably, the tort of public disclosure provides civil recourse to plaintiffs who suffer from crimes such as some forms of cyberbullying where civil statutory protection is lacking.11 Yet, it remains to be seen whether other Canadian courts will be receptive to this tort, given that some Canadian courts have declined to recognize the tort of intrusion upon seclusion.12
Doe is significant in that it demonstrates the flexibility of the common law to adapt to different fact scenarios, and importance of awareness of "new" torts in privacy litigation that can lead to significant civil remedies. There is a possibility that other common law privacy torts will be introduced into Canada. As such, Doe reminds us that the Jones decision did not define the modern scope of invasion of privacy, but rather helped to pave the way for other courts to start filling in holes where they exist in the privacy legal landscape.
3. Note: The Court indicated that there is no way of knowing how many times the Plaintiff's video was viewed, downloaded, copied, or recirculated.
4. Note that the publication of intimate images without consent is a criminal offense under Criminal Code, RSC c C-46, s 162.1.
5. Doe, supra note 2 at para 19.
6. For more information about the decision in Jones, see: Roland Hung, Intrusion Upon Seclusion Part 2: Implications for Businesses Across Canada, online:http://www.canadiantechlawblog.com/2014/08/01/intrusion-upon-seclusion-part-2-implications-for-businesses-across-canada/.
7. William L. Prosser, "Privacy" (1960), 48 Cal L Rev.
8. Restatement of the Law, Second, Torts (The American Law Institute, 2007).
9. Doe, supra note 2 at paras 41 & 46.
10. Doe, supra note 2 at para 47.
11. To date, Manitoba is the only province that has enacted legislation to create a statutory tort of "non-consensual distribution of intimate images" through the passing of The Intimate Image Protection Act, CCSM c I87, s 11.
12. See for example Foote v. Canada (Attorney General), 2015 BCSC 849, discussing the relationship between statutory torts and the common law.
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