Canada: Revenge Porn: Ontario Court Strikes Back

Last Updated: May 27 2016
Article by Scott Chimuk and Michael Grassie

In the Jane Doe1 decision, the Ontario Court ruled that liability exists for the publication of pornographic material without consent.  This landmark decision creates a powerful precedent that should dissuade the dissemination of so-called "revenge porn".

Background

In Jane Doe, the Plaintiff and the Defendant dated in high school, but had separated when the 18 year old Plaintiff moved away to attend university. The Plaintiff and Defendant continued to stay in touch following their separation via text messages, telephone calls, and the internet.

The Defendant began asking the Plaintiff to make a sexually explicit video of herself to send to him.  Although the Plaintiff initially denied the Defendant's repeated requests, she eventually capitulated to his repeated demands after being reassured that no one else would see the video. 

The Plaintiff sent the intimate video to the Defendant and on the very same day, the Defendant uploaded the video onto a pornographic website under the title "college girl pleasures herself for ex boyfriends delight". 

The video remained on the website for at least three weeks, being viewed and downloaded an unknown number of times.  The Defendant also showed the video to a number of his, and the Plaintiff's, friends and acquaintances. 

The Plaintiff suffered a significant psychological disturbance which impacted her progress and success at university. Further, the Plaintiff was so mentally anguished by the publication of this video that she became depressed, was treated at a crisis intervention centre, and required counselling for over a year and a half. 

The Defendant never apologized nor did he show any remorse for his actions. The Court ultimately held that the Plaintiff was entitled to common law remedies for the breach of three separate torts: breach of confidence, intentional infliction of mental distress and invasion of privacy.

Breach of Confidence

The Court applied the common law test for the tort of breach of confidence which requires the following:

  1. that the information must have the necessary quality of confidence about it;
  1. that the information must have been imparted in circumstances importing an obligation of confidence; and
  1. that there must be unauthorized use of that information to the detriment of the party communicating it.

The Court concluded that the sex tape was clearly confidential, private and personal to the Plaintiff, and was not intended to be publicly available.  Further, the video was expressly provided on the basis that it would be confidential and not shown to anyone other than the Defendant.

Finally, the Court held that the release of the sex tape clearly caused harm to the Plaintiff.  Although this element of the test is typically applicable in commercial instances where the release of information has caused some kind of financial harm, the Court saw no reason why the "harm" element of the test could not equally apply to emotional harm.  Therefore the Court held that the Defendant was liable under the tort of breach of confidence.

Intentional Infliction of Mental Distress

The Court also applied the common law test for the tort of intentional infliction of mental distress which requires the following:

  1. conduct that is flagrant and outrageous;
  1. calculated to produce harm; and
  1. resulting in a visible and provable injury.

Applying the test, the Court found that the Defendant persuaded the Plaintiff into sending the intimate video to him, with the assurance that he alone would view the video.  Because the Defendant publicly posted the video on the same day on which he received it, his actions signified a clear violation of the promise made as well as a breach of trust.

The Court held that the foreseeability of harm was clear, and that this resulting harm was also obvious and significant.  Consequently, the Defendant was liable under the tort of intentional infliction of mental distress.

Invasion of Privacy

The Court then turned to the tort of invasion of privacy.  The Court addressed the legal principles behind the intrusion into financial accounts for one's own personal benefit as well as the applicability of the Charter on individuals' rights to privacy before formulating a slightly altered test that is applicable to the disclosure of intimate information:

"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."

The Court found that a reasonable person would find the Defendant's behaviour highly offensive and that there was no legitimate public concern behind the public disclosure of the private video. Therefore, the Defendant was also liable under the tort of invasion of privacy.

Available Remedies

The Court took an interesting and thorough approach to determining the appropriate damages and remedies that the Plaintiff was entitled to.  It paralleled the harm experienced by the Plaintiff, to that of plaintiffs who were the victims of physical sexual battery, and who suffered from the associated psychological impacts and consequences.  As a result the Plaintiff was entitled to general damages of $50,000 for her pain and suffering.

The Court found that the Plaintiff was vulnerable as a young, 18 year old girl.  Consequently the Defendant's actions were very invasive and degrading while he was in a relationship of trust.   The Plaintiff suffered devastating emotional and psychological harm and therefore the Court held that aggravated damages of $25,000 were warranted.  Further, given the Defendant's lack of remorse and failure to issue an apology, the Court found that punitive damages of $25,000 were also justified.  Lastly, the Plaintiff was awarded her full solicitor client costs. 

It is important to note that the Plaintiff brought a claim under Rule 76 of the Ontario Rules of Civil Procedure which allows a Plaintiff to claim between $25,000 and $100,000 exclusive of interest and costs. It is likely no coincidence that the Plaintiff was awarded $100,000 plus costs – which was the maximum amount available. 

Accordingly, with this precedent, it is possible that future courts may make even greater awards depending on the factual circumstances – especially in actions which are not subject to the above monetary restrictions.

Conclusion

The Jane Doe decision is a good example of the Court using time tested common-law remedies to address modern problems that have arisen with the spread of technology.  It is likely that future actions will test whether the legal principles set out in Jane Doe can be applied to the enablers of "revenge porn" – namely the websites that publish the offending material.  It will also be interesting to see if this case can be applied not just to "revenge porn" but to other cases where private information is stolen or coerced from victims.

While it is likely that the elements of the tort of breach of confidence would not apply to a third party website, arguments could be made that the elements of intentional infliction of mental distress or invasion of privacy could be satisfied – particularly if the website owner is aware that the information is being provided without the consent of the victim.

Further, a sound argument could be made that the amount of punitive damages should be greatly increased as against the websites who profiteer in the shaming and humiliation of innocent victims. 

Given today's access to technology and the common trends of intimate photographs and videos being transmitted between parties, as well as such information being stolen from unsuspecting victims' computers and then disseminated across the web, it is likely that this decision will become a necessary precedent and open the door for subsequent claims of similar nature. 

The Court has now provided a clear decision, establishing the precedent that individuals will be held liable for publicizing intimate images or videos without consent.  Hopefully this decision will act as a preventative measure and educate individuals of the consequences before they participate in "revenge porn" or the shaming of their partner, or former partner.  Further, the Jane Doe decision may open the door for future actions against the websites that disseminate this objectionable material.

Footnotes

1. Jane Doe 464533 v. N.D., 2016 ONSC 541

About Mackrell International - Canada - Scott Venturo LLP is a full service business law firm in Calgary, AB and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.

This article is intended to be an overview and is for informational purposes only.

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