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La divulgation publique de faits privés – un nouveau délit?

December 2, 2016 - Jeff Saikaley & Gabriel Poliquin

In this era of “sexting” and “revenge porn”, many more potential clients are vulnerable to their most private moments being distributed online for the world to see, quite literally. In a recent decision, Doe 464533 v N. D. (2016 ONSC 541), Stinson J. of the Ontario Superior Court of Justice has boldly gone where few had dared to go.

The story is sadly familiar: boy meets girl, they have an intimate relationship, boy pressures girl to send him an intimate video of herself for his viewing pleasure only (or so he tells her), boy posts video on the internet and girl’s life, health and reputation are severely damaged, possibly forever.

The consequences of such conduct are not trite. As Stinson J. observes, the impact of the defendant’s conduct is similar to the impact of a sexual assault: physical and mental distress, eating and sleep disorders, panic attacks, depression, anxiety and, in some cases, suicide. Stinson J.:

[16] In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.

The federal Parliament has caught up with the phenomenon and amended the Criminal Code to make the “publication of an intimate image without consent” a criminal offence punishable by up to five years in prison (s. 162.1). Manitoba has also created the legislative tort of “non-consensual distribution of intimate images” (see The Intimate Image Protection Act, C.S.S.M. c. I87, s.11). The Ontario Legislature, however, has not yet followed suit.

In this legislative vacuum, Stinson J. concludes that “that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition”. The plaintiff’s action was not defended and yet, in a bold move, Stinson J. decided it was appropriate to issue articulated reasons to substantiate the existence of a new tort, so pressing is the need for legislative action in these matters, whether properly legislative or judicial.

Stinson J. finds legal authority for the tort in an American legal article by William L. Prosser on the invasion of privacy (“Privacy” (1960), 48 Cal. L. Rev.) on whose authority the Ontario Court of Appeal had also recognized the tort of “intrusion upon seclusion” in Jones v. Tsige, 2012 ONCA 32. Intrusion upon seclusion is one of four distinct torts identified by Prosser under the theme of invasion of privacy. In Jones v. Tsige, the defendant was found liable for snooping on the plaintiff by accessing the latter’s bank records. The tort of intrusion upon seclusion comprises the four following elements:

1. There must be something in the nature of prying or intrusion;
2. The intrusion must be something which would be offensive or objectionable to a reasonable person;
3. The thing into which there is prying or intrusion must be, and be entitled to be, private, and;
4. The interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.

The second of Prosser’s four torts is the “public disclosure of embarrassing private facts,” now recognized by the Ontario Superior Court. How does it differ from intrusion upon seclusion? The difference is in disclosure. The elements of the tort adopted by Stinson J. were those of the Restatement (Second) of Torts (2010):

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 publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public [underlining by Stinson J.].

The two torts also differ in the amount of damages awarded.

Though the victim of intrusion upon seclusion may suffer damage from being pried upon, the tort does not involve publication. It is the publication of embarrassing private facts that can result in very serious damage, including the damage to one’s reputation. (Note: the tort differs from defamation in important respects. Defamation targets the publication of false statements that can cause damage to one’s reputation. Damage resulting from defamation is presumed if its elements are made out).

Whereas the plaintiff in Jones was awarded $10,000 in general damages, (with ample cautionary language from the Court of Appeal), Stinson J. awarded the plaintiff general damages of $50,000, owing to the fact that the plaintiff had suffered damage akin to those that result from sexual battery or abuse. Stinson J. also awarded $25,000 in aggravated damages, as the defendant’s breach of confidence was an affront to their relationship that made the impact of his actions even more hurtful and painful for the plaintiff. Stinson J. further awarded $25,000 in punitive damages, owing to the fact that the defendant showed no remorse and acted insolently.

Stinson J.’s recognition of a new tort, though welcome, is particularly bold where the plaintiff also made out causes of action for two relatively familiar torts: breach of confidence and intentional infliction of mental distress.

There is significant overlap between the public disclosure of embarrassing private facts and breach of confidence. As Stinson J. reminds us, the elements of the latter tort are the following:

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

Not all breaches of confidence will amount to the public disclosure of embarrassing private facts, however. Lac Minerals comes to mind, of course, which concerned the disclosure of secrets that were industrial in nature, though not embarrassing. That said, the reverse may be true, the disclosure of embarrassing private facts will surely involve a), information with a quality of confidence that, b), was imparted in circumstances importing an obligation of confidence and c) the unauthorized use of that information will be to the detriment of the originating party. If in doubt, plead both.

The same cannot be said for intentional infliction of mental distress, whose distinguishing factor is an element of intention, or, at the very least, the knowledge that disclosure would result in harm. On the facts of the case, Stinson J. was of the view that the defendant had an intention to cause the plaintiff harm, a fact which also translated into aggravated damages. It would likely be appropriate to plead this tort in similar cases that involve so-called ‘revenge porn’, where intimate images are disseminated out of vindication. Not all cases are of that nature, intimate images may be disseminated out of pure immaturity or as an unfortunate consequence of ‘affluenza’. Again, if in doubt, plead both – you never know what will come out in discoveries.

Of note – Stinson J. was of the view that the plaintiff’s psychological harm did constitute a ‘visible and provable illness’ sufficient to satisfy the third element of intentional infliction of mental distress. The fact that the plaintiff suffered from depression and that she sought care in a crisis centre were decisive in satisfying this element of the tort.

In conclusion, though the addition of this new tort is welcome insofar as it potentially provides a cause of action for plaintiffs who may otherwise have fallen through the cracks of older torts, there remains significant overlap between torts of this nature, old and new. As such cases are, unfortunately, becoming more and more frequent, we can expect the courts to spend time teasing their differences apart.

In recent news, the defendant has now sought to set aside the judgment. It remains to be seen if he is successful in doing so and whether this new tort will remain part of the litigator’s toolkit going forward.

UPDATE!

The defendant was successful in his motion to set aside the default judgment upon payment of $10,000 to the plaintiff for costs. The plaintiff sought leave to appeal from the decision setting aside the default judgment and, on January 9, 2017, leave to appeal was denied by Justice Kiteley. The decision can be read here

It appears that, as of now, Justice Stinson’s decision is no longer good law. It will be interesting to see if the new tort is applied and adopted in future cases or if we have seen the early demise of the ‘public disclosure of embarrassing private facts’ tort.