RECENT UPDATES ON THE TORT OF PUBLIC DISCLOSURE OF PRIVATE FACTS
In 2018, the Ontario Superior Court of Justice established the tort of “public disclosure of private facts” in Jane Doe 72511 v. N.M., 2018 ONSC 6607 (CanLII).
In that case, the plaintiff, Jane Doe, and the defendant, N.M., were dating. The plaintiff became pregnant after six months. Their relationship deteriorated thereafter. Over the course of almost two years, the defendant physically and verbally abused the plaintiff and threatened her. The defendant was later convicted of assault. The plaintiff had reported him to the police.
The plaintiff eventually learned that the defendant posted a sexually explicit video of her on a pornography website. She never consented to the posting. The video had a derogatory and racist title and the plaintiff’s face could be seen in the footage. She was able to get the video taken down but not before it had been viewed over 60,000 times. It was connected to at least ten different websites and downloaded an unknown number of times. The defendant uploaded the video out of revenge for his criminal conviction.
The plaintiff sued the defendant. N.M did not defend the action and was noted in default. Justice Gomery recognized the new tort of public disclosure of private facts. According to the court, a plaintiff must prove the following elements to make out the cause of action:
- The defendant publicized an aspect of the plaintiff’s private life;
- The plaintiff did not consent to the publication;
- The matter publicized or its publication would be highly offensive to a reasonable person; and
- The publication was not of legitimate concern to the public.
While the defendant was noted in default, the plaintiff still had to prove her losses. Justice Gomery awarded the plaintiff $50,000 in general damages, $25,000 for aggravated damages and $25,000 for punitive damages. These sums were awarded even though the plaintiff did not present evidence of a psychological diagnosis or of psychological treatment because of the publication.
Since then, the Queen’s Bench of Alberta[1] and the King’s Bench of Saskatchewan have also recognized the cause of action.
In ES v. Shillington, 2021 ABQB 739 the plaintiff and defendant were in a romantic relationship for 11 years and had two children together. The defendant committed multiple acts of physical and sexual assault against the plaintiff. As part of their relationship, the plaintiff shared intimate photographs of herself with the defendant. She was engaging in sexual activity in the photos. They were shared as a private gift to the defendant. It was understood that they would not be distributed. Near the end of their relationship, the plaintiff learned that the defendant posted these images on pornography websites 15 years earlier. The plaintiff was recognizable in some of the content.
The plaintiff sued the defendant. The court recognized the tort of public disclosure of private facts in Alberta. It defined the cause of action in the same way as Justice Gomery had, with one point of clarity: with respect to the third element, the content publicized or its publication must be offensive to the reasonable person who stands in the position of the plaintiff.
When assessing damages, the court noted that plaintiff was suffering from depression, anxiety, sleep disturbance and humiliation. Unlike in Jane Doe 72511, there was evidence from a psychologist about the impact of the public disclosure on the plaintiff’s mental health. She was attending therapy and taking medications. She continued to suffer emotionally despite treatment and she was unable to engage in romantic relationships. Pain and suffering damages were assessed a $80,000. Aggravated and punitive damages were assessed at $25,000 and $50,000 respectively. The general and punitive damages claims were higher than they were in Jane Doe 72511.
Most recently, Justice Zerr of the Saskatchewan Court of King’s Bench has also recognized the tort. In S.B. v. D.H., 2022 SKKB 216, the defendant uploaded nude pictures of the plaintiff, his ex-wife, on a pornography website. He shared her name and personal details. He encouraged users to repost the videos. One of the videos was viewed over 1.5 million times. She was on at least ten different websites. The plaintiff never consented to any publication.
As a result of the publication, the plaintiff experienced anxiety, distress and shame which affected her sleep. She understandably had issues with trust. She was worried that she could never completely delete the images from the internet and that her son would one day be shown the videos. At times she was so upset about what happened that she would not be able to get out of bed. She attended 6 counselling sessions with a social worker over a 6-month period. She would have benefited from additional treatment, but her insurer did not cover more counselling. Her social worker gave evidence at the hearing. It did not appear that she had been given a formal diagnosis, though the court found her symptoms were serious and prolonged.
Justice Zerr awarded the plaintiff $85,000 in general damages and $75,000 aggravated damages ($160,000 combined). Punitive damages were not awarded because of the defendant had already been convicted criminally of the non-consensual distribution of intimate images and served significant jail time.[2] The elements of the tort were the same as in ES v. Shillington. General and aggravated damages in S.B. v. D.H. were notably higher than what was awarded in ES v. Shillington.
The tort of public disclosure of private facts now exists in Ontario, Alberta, and Saskatchewan. The awards of damages in Jane Doe 72511, ES v. Shillington, and S.B. v. D.H. are not insignificant, even when there isn’t a formal psychological or psychiatric diagnosis. In fact, it seems whether there is a diagnosis is only one factor of many to consider – which is consistent with the Supreme Court of Canada’s decision in Saadati v. Moorhead.
[1] Now the King’s Bench.
[2] The defendant had been charged and convicted for the non-consensual distribution of intimate images of six different women, including the plaintiff.
