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.