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Ontario court expands scope of privacy tort to include ‘revenge porn’

|Written By Gabrielle Giroday

A recent ruling that found a man financially liable for posting a private sex tape of a former girlfriend online is being hailed as a case that is the first of its kind in Canada.

Experts are calling the decision a win, which makes sense given we live in an age where there is a rapidly climbing sensitivity to victimization of all kinds, particularly in social media.

But here’s the sticky widget — how much is a lifetime of possible humiliation by an online sex video worth?

If you were to ask the women or men I know how much it would be worth to not have videos made public, for most, the figure would be off the charts.

No one who has lived through any kind of public humiliation, even those who behaved improperly, such as Hydro One employee Shawn Simoes, would want sensitive online information about himself or herself accessible in perpetuity.

In the recent tort in question, in Jane Doe 464533 v. N.D., a then 18-year-old man shared a video of his one-time girlfriend that he’d promised her would remain private.

In fact, the day she sent the video to him, he posted it online, where it was available for three weeks, and accessed or copied an unknown number of times, before it was taken down.

According to the ruling by Ontario Superior Court Justice David Stinson, the damages against the defendant for posting the video were $100,000, as well as pre-judgment interest of $5,500.

That included general damages of $50,000 for “the past and ongoing impact of the defendant’s actions on the plaintiff,” as well as $25,000 for the breach of trust the plaintiff committed by making a private video public, and $25,000 for punitive damages.

“Personal and private communications and the private sharing of intimate details of person’s lives remain essential activities of human existence and day to day living. To permit someone who has been confidentially entrusted with such details — and in particular intimate images — to intentionally reveal them to the world via the Internet, without legal recourse, would be to leave a gap in our system of remedies,” said the ruling. “I therefore would hold that such a remedy should be available in appropriate cases."

In the landmark case Jones v. Tsige, there were $10,000 in damages, after a bank employee illicitly checked out confidential information about her husband’s ex-wife.

Stinson acknowledges in this case the financial reward is much higher.

“[Jones vs. Tsige] was a much different situation, however; while it, too, was a case involving ‘invasion of privacy,’ the privacy right offended and the consequences to the plaintiff there were vastly less serious and offensive than the present case,” said the ruling by Stinson. “…This case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways it is analogous to sexual assault."

Justice Stinson’s ruling notes in this case the plaintiff’s action was under the Simplified Procedure, so the damage claim was restricted to a $100,000 limit.

“In support of the damage award sought, plaintiff’s counsel analogized this case to ones involving claims arising from physical sexual battery, with its attendant psychological impact and consequences; although the physical injuries may be modest and ones from which the victim may recover relatively promptly, the emotional and psychological effects of the offensive conduct are frequently severe and long-lasting,” said Stinson. “Counsel Donna Wilson submitted that, in many ways, this case is worse since not only was the plaintiff’s personal and sexual integrity violated through the posting of the video, that violation is ongoing, because the video may well have been copied and stored and is therefore quite possibly still being viewed."

Justice Stinson also fixed the plaintiff’s cost of the action and motion on a full indemnity basis at an all-inclusive sum of $36,208.73, bringing the full award to $141,708.03.

“While this case may be novel it should serve as a precedent to dissuade others from engaging in similar harmful conduct,” said Stinson.

The question any reasonable Canadian might have is, would $141,708.03 possibly begin to address the depression, worry, possible career impacts, and reputational damage a person might experience for having a sexual video shared? With that, I’d say most would say it would not.

Iris Fischer, partner with Blake Cassels & Graydon LLP, says, “The decision, unlike Jones v. Tsige, does not set any cap on non-pecuniary damages.”

Fischer says it’s possible that "more could be available in cases analogous to a sexual assault, as the judge found this one to be."

"Of course, here, the court was limited by the Simplified Procedure Rules, but that won’t always be the case,” says Fischer. "The analogy to sexual assault cases highlights the dignity-based nature of this tort. While this was initially the Court of Appeal’s focus in Jones v. Tsige, where it recognized intrusion upon seclusion, recent class action certification decisions indicate that courts are developing intrusion upon seclusion into more of a negligence-based cause of action, where no 'intrusion' is required.

"How this new tort of 'publication of embarrassing facts' may be developed, and in what contexts, remains to be seen."


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