The Internet: Law’s Wild West Gives Birth to New Tort

The internet has made our life efficient and easier but it has also enabled bullies and predators to find new and persistent ways to reach their victims. A step in the right direction was taken by the Ontario Superior Court, in Doe 464533 v ND, 2016 ONSC 541 [Doe], by establishing the new tort of publication of embarrassing private facts. The identities of both the plaintiff and defendant in Doe are under a publication ban, but the ban does not diminish the precedent setting nature of the case. Besides establishing a new tort, Doe is also significant because the Court relied on jurisprudence from the United States to create the new tort, as well as a basis for awarding a high amount of damages the plaintiff, which speaks to the enormity of the breach.

Revenge Of The Ex

The plaintiff and the defendant dated through high school in a small Ontario town. In the fall of 2011, both had turned 18. The plaintiff had moved away to attend university, while the defendant remained in their hometown. They were no longer “boyfriend and girlfriend,” but communicated regularly. In August of 2011, the defendant started asking the plaintiff to make a sexually explicit video of herself. The plaintiff initially resisted. Upon further insistence from the defendant, the plaintiff agreed to record the video in November. However, she texted the defendant communicated her unease about the whole thing prior to sending him the video.

In December, the plaintiff learned that the defendant had posted the video on a pornographic website and had been showing the video to several of their common friends. The plaintiff contacted the mother of the defendant and the video was removed after being online for three weeks. Police were contacted but in light of the plaintiff’s age, they declined to become involved. The plaintiff suffered severe emotional consequences as a result of the incident which led to depression, deferred exams, and panic attacks.

The Internet or the Wild West of the Law

One of the aspects that struck me most about the case was police’s refusal to get involved. In 2014, Parliament amended the Criminal Code, RSC 1985, c C-46 to include section 161.1, which creates the offence of “publication of an intimate image without consent.” This implies police failed to lay charges in 2011 because the specific offence was yet to be recognized in the Criminal Code. As a result of the slow progress of criminal law in recognizing developing trends, a legitimate victim was forced to seek civil remedies instead of penal sanctions.

Fast forward to the 2016 tort case arising from the 2011 incident. In Doe, Justice Stinson determined that there were three separate courses of action: breach of confidence, intentional infliction of mental distress, and invasion of privacy. Justice Stinson acknowledged that in 2015, the Province of Manitoba enacted legislation to create the tort of “non-consensual distribution of intimate images.” No other province has yet enacted similar legislation and there is a vacuum of case law in this respect. Both counsel for the plaintiff and the Court’s own research yielded no precedent on which to rely. The defendant did not appear and was not represented by counsel, adding another layer of complication.

The Court relied on Grant v Winnipeg Health Authority et al, 2015 MBCA 44 [Grant] for the elements required to make out the elements of the tort of breach of confidence:

• The information must have the necessary quality of confidence about it;
• The information must have been imparted in circumstances importing an obligation of confidence; and
• There must be unauthorized use of that information to the detriment of the party communicating it.

Justice Stinson determined that the test was easily met for the first two branches in the case at hand. The information had a quality of confidence and was imparted under circumstances that demanded that the defendant treat it as confidential. As for the third element, the judge saw “no rational basis to distinguish between economic harm and psychological, emotional and physical harm.” And with this the tort of breach of confidence was established.

The test for intentional infliction of mental distress was outlined by Justice Stinson must examine whether there is:

1. Conduct that is flagrant and outrageous;
2. Calculated to produce harm; and,
3. Resulting in a visible and provable injury.

Here again, Justice Stinson found that the conduct was flagrant and outrageous and that it was entirely foreseeable that posting an intimate video of a young woman would cause extreme emotional upset. As for the visible and provable injury, even though there was no provable physical harm, the actions caused the plaintiff a visible and provable illness. The plaintiff thus made out a claim for intentional infliction of mental distress. It is clear from his reasons that Justice Stinson was sympathetic to the plaintiff’s circumstances and looking to protect future plaintiffs from the same fate.

Invasion of Privacy Part II

The third cause of action in Doe was invasion of privacy. In the precedent setting case of Jones v Tsige, 2012 ONCA 32 [Tsige], the Court of Appeal of Ontario recognized the existence of the tort of invasion of privacy in the form of intrusion upon seclusion. Tsige also recognized the authoritative American legal article by William L. Prosser, “Privacy” (1960), 48 Cal L Rev, where the author delineated a four-tort catalogue related to privacy:

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 paces the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

Tsige adopted the first of these torts, intrusion upon seclusion, into Ontario Law. Justice Stinson found that while some of the hallmarks of intrusion upon seclusion were present in Doe, the facts more closely fall within Prosser’s second category.

Prosser, writing in 1960 before the Internet age, had listed the elements of the tort of public disclosure of embarrassing and private facts as follows:

1. The disclosure of private facts must be a public disclosure, and not a private one;
2. The facts disclosed to the public must be private facts, and not public ones; and
3. The matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.

In recognizing the tort, Justice Stinson adopted, with modification, the definition found in Restatement (Second) of Torts (2010) another American source. The new test in Ontario thus has become “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.”

Once the test was established it was easy to find that the defendant had posted a privately-shared and highly personal intimate video of the plaintiff on the internet and that a reasonable person would find such activity highly offensive. Judge Stinson then considered damages and awarded the plaintiff general, aggravated and punitive damages amounting to the upper limit of $100,000 set by the simplified court rule under which the plaintiff had filed.

As for the punitive damages the court noted that “while this case may be novel, it should serve as a precedent to dissuade others form engaging in similar harmful conduct.” Hopefully, the cases will not be many, but as of 2016 there is new recourse available when private images are distributed without consent online.