New technology in the digital age involves the routine collection and aggregation of highly sensitive personal information that is readily available in electronic formats. This poses new threats to the right of privacy and is continually forcing Canadian courts to develop novel invasion of privacy laws.
As discussed in our Charity Law Bulletin No. 277, the Ontario Court of Appeal first recognized an invasion of privacy tort called “intrusion upon seclusion” in the 2012 case of Jones v. Tsige (“Jones”). On January 21, 2016, in Jane Doe 464533 v N.D. (“Doe”), the Ontario Superior Court of Justice (the “Court”) recognized yet another invasion of privacy tort called “public disclosure of private facts”, again expanding the scope of privacy laws in Ontario.
In Doe, the plaintiff and defendant previously had a relationship with one another. Under pressure from the defendant, the plaintiff recorded an intimate video of herself and sent it to the defendant upon reassurances that nobody else would see it. The plaintiff later learned that the defendant had shared the video with members of their mutual social circle and posted it on an Internet pornography website. According to uncontested facts, this has had a significant and long-lasting effect, both mentally and physically, on the plaintiff.
In coming to its decision, the Court drew heavily on the Jones decision which referenced a seminal legal article outlining four common law privacy torts in the United States, including the tort of intrusion upon seclusion, and the tort of public disclosure of embarrassing private facts. The Court determined that the facts of this case best fit within the tort of public disclosure of private facts. The Court stated the elements of the new tort as follows: “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.
Applying the facts to the elements of the tort, the Court held that a reasonable person would find that the defendant’s actions were highly offensive and that the published material was not of public concern. As a result, the Court awarded $100,000 in damages, the maximum amount of damages procedurally available under Ontario’s Simplified Procedure. This was quite different than the modest $10,000 award in Jones. In awarding damages, the Court held that the facts had similarity to the impact of a sexual assault and stated that “[a]lthough there was no physical violence, in these circumstances, especially in light of the multiple times the video was viewed by others and, more importantly, the potential for the video still to be in circulation, it is appropriate to regard this as tantamount to multiple assaults on the plaintiff’s dignity”. Notably, the defendant did not defend the action and the award was a default judgment. Had the defence argued the case fully the damages awarded may have been different.
In recognizing the increasingly rapid emergence of new technologies and online platforms, the Court noted that “[i]n 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”. It will be interesting to see if Canadian courts in other jurisdictions will be receptive to this tort. For charities and not-for-profits, this case illustrates that care must be taken to protect the privacy of individuals as the courts continue to recognize new invasion of privacy torts.