Public Disclosure of Private Facts (Tort)

Doe 464533 v N.D., 2016 ONSC 541 (CanLII)

[44] Plainly, writing in 1960, Prosser was discussing events that might occur in a pre-Internet world, where the concepts of pornographic websites and cyberbullying could never have been imagined. Nevertheless, the essence of the cause of action he described is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living.

[45] 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. I therefore would hold that such a remedy should be available in appropriate cases.

[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: 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. [modification shown by underlining]

[47] In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.

[48] I therefore conclude that this cause of action is made out.

II - Remedies

[49] The plaintiff seeks an award of damages, injunctive relief and certain procedural directions that will protect her identity. I will deal with each of these topics in turn.

A. Damages

[50] The plaintiff’s action was commended under the Simplified Procedure and thus her damage claim is limited to $100,000. Plaintiff’s counsel submitted that a much higher award was suitable, but conceded that she was restricted to the $100,000 limit.

[58] Having regard to these factors and the past and ongoing impact of the defendant’s actions on the plaintiff, I would assess her general damages at $50,000. I am alert to the relatively modest ($10,000) award in Jones v. Tsige, and the cautionary comments of the Court of Appeal concerning claims for intrusion on privacy of the sort that formed the basis for the plaintiff’s claim in that case. That 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. For the reasons previously mentioned, 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 a sexual assault. Given the circumstances of this case, and in particular the impact of the defendant’s actions, a substantially higher award is warranted here.

[59] This is a case where an award of aggravated damages is warranted, too. Such damages may be awarded where the damage to the plaintiff was aggravated by the manner in which the culpable act was committed. Here, the posting of the video amounted to a breach of the trust reposed by the plaintiff in the defendant that he would not reveal it to anyone else. This feature of the defendant’s behaviour was an affront to their relationship that made the impact of his actions even more hurtful and painful for the plaintiff. I would award $25,000 on this account.

[60] The plaintiff also seeks punitive damages. Such an award may be appropriate where the defendant has acted in a high-handed or arrogant fashion or has recklessly disregarded the plaintiff’s rights or the potential impact of the defendant’s intentional conduct. Those are apt descriptions of the defendant’s conduct here. He gave no consideration to the inevitable impact of his actions on the plaintiff. He has not apologized; indeed, according to the plaintiff, despite being aware of the harm he has caused, when they have encountered one another since the event, he has had an insolent look on his face, and has shown no remorse. No apology has been forthcoming. In my view, this is a case where an award of punitive damages is warranted.

[63] Taking into account all the foregoing considerations, I would award the plaintiff punitive damages of $25,000, which in my view is proportionate in the circumstances.

[69] For the above reasons, I grant judgment in favour of the plaintiff against the defendant for damages in the total amount of $100,000, plus pre-judgment interest in the amount of $5,500, for a total award of $105,500. I fix the plaintiff’s costs of the action and the motion on a full indemnity basis at the all-inclusive sum of $36,208.73. This results in a total monetary award in favour of the plaintiff of $141.708.03.

[71] Lastly, I wish to commend the plaintiff for her courage and resolve in pursuing the remedies to which she is entitled. She has experienced considerable psychological pain arising from the events in question, and has been called upon to relive and recount these events in the course of this litigation, thereby reviving painful memories. Given the lack of precedent in Canadian law for such a claim, she had no assurance of the outcome. Quite apart from the personal result for her, her efforts have established such a precedent that will enable others who endure the same experience to seek similar recourse.