Canadian courts have traditionally been more reluctant than their American counterparts to recognize torts relating to privacy interests. The American Law Society adopted the following four torts protective of individual privacy some time ago in its well-known legal catalogue, the Restatement (Second) of Torts (2010):
- Intrusion upon the plaintiff's seclusion or solitude, or into [their] private affairs
- Public disclosure of embarrassing private facts about the plaintiff
- Publicity which places the plaintiff in a false light in the public eye
- Appropriation, for the defendant's advantage, of the plaintiff's name or likeness
Canadian courts have recognized the first, second, and fourth of these torts – spurred on, in some cases, by the rapidly evolving facility with which personal information can be accessed and disseminated online. A recent decision from the Ontario Superior Court of Justice has now filled an important gap between Canadian and American approaches to the tortious invasion of privacy by adopting the third in the Restatement’s “four-tort catalogue” as well (and there is little doubt that the potential to use common digital tools as weapons to injure personal privacy interests served a role in the decision). In Yenovkian v Gulian, 2019 ONSC 7279, the court recognized for the first time the tort of “false light” publicity.
Yenovkian is a family law matter with unsavoury facts. At its core, the case is a dispute between a former husband and wife over parenting and custody issues, though it involved numerous other claims and allegations levelled by the parties against one another, including a cross-claim brought by the wife (Ms. Gulian) for damages for intentional infliction of emotional suffering, invasion of privacy, and punitive damages. Of particular relevance to her damages claim was what the court termed an “egregious” campaign of “cyberbullying” carried on by Mr. Yenovkian against various people including his wife, her family, her lawyer at trial, her witnesses, and even a Justice of the Ontario Superior Court. The court found that Yenovkian had created a number of websites that featured links to images and videos of his children, his wife, and her parents. The images and videos were accompanied by written and oral commentary accusing his wife and her family of numerous illegal and even criminal acts, including kidnapping, child abuse, theft, fraud on the government, assault, administering narcotics to the children, uttering death threats, and forgery. The images and videos, together with the litany of allegations, were also reproduced on Yenovkians’ YouTube channel, Facebook page, and a GoFundMe page he created. The material Yenovkian posted online contained intimate information relating to his children, his wife, and her family, and the many allegations he repeated in numerous online forums were false. The relentless character of Yenovkian’s campaign is perhaps best illustrated by the fact that, on the last day of trial, he threatened to release additional videos.
In such a context, it is perhaps not surprising that the court would be motivated to find a remedy for Ms. Gulian. After examining the Restatement’s comments on tortious invasion of privacy, and tracing the development of that strain of the law in Canada, Justice Kristjanson found that the case before her was an appropriate one in which to recognize finally the tort of “publicity placing the plaintiff in a false light”. The elements of this newest privacy tort, according to Kristjanson J., are the following:
“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
- The false light in which the other was placed would be highly offensive to a reasonable person, and
- The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
The value underwriting such a tort is, as the court puts it, “respect for a person’s privacy right to control the way they present themselves to the world”. Moreover, while it may be that the publicity giving rise to the tort will sometimes be defamatory, defamation is not required in order to make out the new tort. The wrong lies not in publicly representing someone as worse than they are (as in a defamation case), but rather as other than they are.
Justice Kristjanson found all the elements of the tort present and went on to consider damages. On this front, she distinguished the tort of “false light” publicity from “intrusion upon seclusion”, which typically garners only a modest damages award, on the basis that the type of damage caused by “false light” publicity is more far-reaching. She adopted the following four factors as guidelines for measuring a proper damages award in cases of this kind (borrowed form the reasons of Cory J. in the Hill v Church of Scientology defamation case):
- The nature of the false publicity and the circumstances in which it was made,
- The nature and position of the victim of the false publicity,
- The possible effects of the false publicity statement upon the life of the plaintiff, and
- The actions and motivations of the defendant.
Given the “egregious” character of the false publicity in the matter before her, its wide dissemination across the Internet, the detrimental effect on Ms. Gulian’s health and social standing, and the lack of any sort of remorse from Mr. Yenovkian (to say nothing of the fact that he had neither retracted the publicity nor apologized, and continued to threaten more even during the trial itself), Justice Kristjanson assessed damages for “false light” publicity in this case at $100,000. She awarded Gulian a further $50,000 in damages for the separate tort of intentional infliction of mental suffering, and $150,000 in punitive damages for the “reprehensible” nature of Mr. Yenovkian’s conduct generally.
While the existence of the tort of “publicity placing the plaintiff in a false light” has not been confirmed (or denied) by an appellate-level Canadian court, the implications of Yenovkian for organizations – at least for now – are significant. Care should be taken that public statements (particularly those made on social media platforms or webpages) concerning individuals – including employees, customers, and other people the organization interacts with – are accurate and do not depict anyone in a misleading or “false light”. Announcements concerning the departure of senior employees, for example, should be worded in a fashion that minimizes any sort of negative impact on the employee’s reputation. And where individuals request a correction to or even the removal of personal information concerning them posted by an organization on a public forum, organizations should consider their potential civil liability under this new tort, as well as their existing obligations pursuant to privacy legislation. In the end, Yenovkian v Gulian provides individuals with another method, among a growing set of options, to exert greater control over the manner in which their personal information is used and disseminated.
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.