In December, we reported on the Federal Court’s decision to certify a class action based on the novel tort “publicity given to private life.” In the recent decision Doe v D, the Ontario Superior Court has gone even further: it recognized the tort as part of the common law, and held that the tort gave rise to damages and injunctive relief.1
The case involved the non-consensual public disclosure of intimate images. The defendant pressured the plaintiff, his ex-girlfriend, to send him a sexually explicit video of herself and promised the video would remain private. She reluctantly complied. The defendant proceeded to share the video with mutual friends and also posted it on a pornographic website. The video was available online for three weeks and viewed and/or downloaded an unknown number of times, which caused the plaintiff to suffer severe and continuing emotional distress and depression.
The defendant failed to deliver a defence and the matter proceeded by way of motion for default judgment. The court held that the defendant was liable under the existing torts of breach of confidence and intentional infliction of mental distress, but also under the tort of “public disclosure of private facts.” The court described the test for this 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.
Similar to the Federal Court, the Ontario court referenced the elements of the cause of action as set out in the Restatement (Second) of Torts (2010), but went further by adopting this description of the tort as law. The Ontario court also added that the act of publication itself may give rise to liability, as opposed to focusing the tort only on the subject matter of the publication.
The remedy ordered by the court is notable. The court awarded general, aggravated and punitive damages of $100,000, which is far more than the range of damages suggested by the Court of Appeal in Jones v Tsige for the tort of intrusion upon seclusion. Moreover, the court also ordered a permanent injunction prohibiting direct and indirect communication with the plaintiff and her family.
Tort law used to protect private lives
Doe v D demonstrates a strong inclination by the court towards the protection of individuals’ private lives. As the court stated, “[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.” It will be interesting to see how this decision is taken up by other courts, especially those reluctant to recognize the tort of intrusion upon seclusion, and whether it will be applied beyond the disclosure of clearly private, intimate images, for example where freedom of the press is an issue.
1 Doe v D, 2016 ONSC 541.