False Light (Tort - Privacy)

Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII)

[164] The test for intentional infliction of mental suffering as set out by the Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384, para. 27 is:

(a) flagrant or outrageous conduct;

(b) calculated to produce harm; and

(c) resulting in a visible and provable illness.

[165] I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v Ayotte, 2010 ONCA 384 at para 78.

[166] The Ontario Court of Appeal recognized one aspect of tortious invasion of privacy in the form of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241. Sharpe, J.A. also referred to other forms of invasion of privacy described in the seminal article of William L. Prosser, “Privacy” (1960), 48 Cal. L. Rev. 383, and adopted by the American Law Society in the Restatement (Second) of Torts (2010). Prosser’s “four-tort catalogue”, as Sharpe, J.A. called it, is as follows:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. (Jones v. Tsige at para. 18)

[168] Since Jones v. Tsige, this Court has recognized the second form of invasion of privacy, that is, public disclosure of private facts. The two principal cases that have dealt with this are Jane Doe Doe 464533 v. N.D. (“Jane Doe 2016”) and Jane Doe 72511 v. N.M., 2018 ONSC 6607, [2018] O.J. No. 5741 (“Jane Doe 2018”). (In both instances, there was default judgment for the plaintiff; because the default judgment was set aside in Jane Doe 2016, the cause of action was recognized anew in Jane Doe 2018.) In each of these cases, the defendant had published intimate videos of his partner on internet pornography sites. The elements of the cause of action, as set out in Jane Doe 2018, at para. 99, are as follows:

(a) the defendant publicized an aspect of the plaintiff's private life;

(b) the plaintiff did not consent to the publication;

(c) the matter publicized or its publication would be highly offensive to a reasonable person; and

(d) the publication was not of legitimate concern to the public.

[169] In so describing the elements of the tort, this Court has followed the American Restatement, with a subtle but important modification. It need not be the matter itself that is highly offensive to a reasonable person: it is enough if the fact of its publication is offensive: Jane Doe 2016 at para. 46, Jane Doe 2018 at paras. 81, 98-99.

[170] With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

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

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) 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.

[171] I adopt this statement of the elements of the tort. I also note the clarification in the Restatement’s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.

[172] It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)

[173] It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.

[174] Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.