A recent decision of the Ontario Superior Court of Justice has expanded the scope of the tort of invasion of privacy in Ontario. This is an important development, given that the tort was only recognized for the first time by the Ontario Court of Appeal in 2012. The rapid expansion of private recourses for invasion of privacy is not surprising. Technology has amplified privacy risks, and highly publicized incidents of data breaches, snooping, shaming, and identity theft have dramatically increased public awareness of the risks and harms of privacy invasive activity.

Doe 464533 v. D. involved a defendant who posted an intimate video of the plaintiff on a pornography website without her knowledge or consent. The two had been in a relationship which began when they were in high school and ended shortly afterwards. The plaintiff moved away to attend university and remained in regular contact with the defendant. He began pressuring her to send him an intimate video of herself. She refused to do so for a time, but eventually gave in to repeated requests. The defendant had assured her that no one else would see the video. As it turns out, he posted the video to a porn site on the same day he received it. He also showed it to other young men from the high school he had attended with the plaintiff.

The posting of the video and its aftermath were devastating to the plaintiff who suffered from depression and anguish. Justice Stinson observed that at the time of the hearing, 4 years after the incident, she was still “emotionally fragile and worried that the video may someday resurface and have an adverse impact on her employment, her career or her future relationships.” (at para 14)

There are two significant aspects to the court’s decision in this case. The first is that it expands the privacy tort recognized by the Ontario Court of Appeal in Jones v. Tsige. In that case, a bank employee had improperly accessed customer information for her own purposes. The Court of Appeal was prepared to recognize at least one aspect of the broad tort of invasion of privacy – that of “intrusion upon seclusion”. In other words, one who snoops or hacks their way into the personal information of another can be held liable for this invasion. The facts of Doe 464533 did not fit within the boundaries of ‘intrusion upon seclusion’. The defendant did not improperly access the plaintiff’s personal information. She sent it to him directly. However, she did so on the understanding that the material would remain strictly private. In breach of this understanding, the defendant posted the information online and shared it with common acquaintances. Justice Stinson characterized this as another branch of the broad tort of invasion of privacy – the “public disclosure of embarrassing private facts about the plaintiff”. Justice Stinson observed 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.” (at para 44) He adopted a slightly modified version of the American Restatement (second) of Torts’ formulation of this branch of the tort:

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. (at para 46)

The recognition of this branch of the tort is an important development given that it now clearly provides recourse for those who are harmed by the publication of private facts about themselves. There are limits – the tort will only be available where the material published “would be highly offensive to a reasonable person”. Further, if the facts are ones that there is a public interest in knowing (for example, the publication of information about a person’s involvement in corrupt or illegal activity), there will be no liability. However in an era in which “revenge porn” is a known phenomenon, the tort may provide a deterrent effect in some instances, and a basis for recourse in others.

The other interesting aspect of this decision is the damage award. The plaintiff had decided to commence her action under the Court’s Simplified Procedure. This meant that the maximum she could ask for in damages was $100,000. Justice Stinson ordered the maximum amount with little hesitation – which suggests that he might have awarded even more extensive damages had there been no cap. This is surely interesting, as damage awards for breach of privacy (either the tort or recourses under private sector data protection laws in Canada) have been generally quite small. In Jones v. Tsige, the Court had awarded only $10,000 in damages and had indicated that the normal range for such damages would be up to a maximum of $20,000 where no direct financial losses could be shown. In Doe 464533, Justice Stinson found the harm suffered by the plaintiff by the publication of the video to be analogous to the harm suffered in cases of sexual assault and battery. He fixed an amount of $50,000 in general damages for the past and ongoing effects of the defendant’s actions. He also awarded $25,000 in aggravated damages relating to the particularly offensive behavior of the defendant. According to Justice Stinson, the defendant’s breach of trust was “an affront to their relationship that made the impact of his actions even more hurtful and painful for the plaintiff.”(at para 59). He also awarded $25,000 in punitive damages for the defendant’s reckless disregard for the plaintiff. He noted that the defendant had not apologized, nor had he shown any remorse. He noted as well the highly blameworthy nature of the defendant’s conduct, the vulnerability of the plaintiff, and the significant harm the plaintiff had suffered. Justice Stinson also expressed the view that the punitive damage award was meant to have a deterrent effect. He stated: “it should serve as a precedent to dissuade others from engaging in similar harmful conduct.” (at para 62) In addition to the total award of $100,000 in damages, the judge ordered a further $5,500 in prejudgment interest and $36,208.73 in legal costs.

The recognition of the new tort, combined with the court’s approach to quantifying the harm suffered from this form of privacy invasive activity, should sound a warning to those who seek to use the internet as a means to expose or humiliate others.