The Alberta Court of Queen's Bench recognized the tort of "public disclosure of private facts" in Alberta, in ES v Shillington, 2021 ABQB 739 ("Shillington"). New torts are rarely recognized by the Courts, and this rare decision marks a pivotal moment in privacy law.
This new tort makes it possible for plaintiffs whose private information is publicly disclosed without their consent to seek damages for that disclosure. Ontario has recognized the tort since 2012 and Nova Scotia since February 2021. Alberta is the first western Canadian province to recognize this new tort.
Shillington involved the disclosure of intimate images on the internet by the defendant. The plaintiff and defendant were in a romantic relationship for a number of years. During the course of their relationship, the plaintiff shared intimate photographs with the defendant. While they were still together, the defendant posted the images online, including on sexually explicit websites.
Though the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, which came into force in Alberta in 2017, provides a civil remedy to those whose intimate images are distributed without consent, the Court determined that it was necessary to recognize a new tort to deal with situations where:
- the distribution occurred prior to 2017, making this Act inapplicable; and,
- private information other than intimate images are disclosed.
To establish the tort, the following elements must be established:
- the defendant must have publicized an aspect of the plaintiff's private life;
- the plaintiff must not have consented to the publication;
- a reasonable person in the same position as the plaintiff would be highly offended by the publication; and
- the publication was not of legitimate concern to the public.
The plaintiff is not obligated to prove actual damages, as damages are presumed by when private facts are publicized without consent.
The types of private information protected by this new tort are not closed. The Court has recognized that individuals have privacy interests in their sexual and relationship matters, and financial and health records.
The recognition of this new tort in Alberta is a stark reminder to businesses that they must take extra caution to protect private customer and/or employee information.
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.