This story begins like many romance movies we see in the theatres. A young budding high school romance in a small town. A young woman and a young man begin dating in Grade 12. They break off the relationship, but continue to see each other romantically. The young woman moves to a different city to begin a new chapter of her life at university. While apart, the two continue to communicate regularly by phone and on the internet. They continue to see one another when she comes home to visit her parents.
But this story doesn’t end like many romance movies do. Within minutes and with a few clicks of a button, this story takes a dark turn. One that is becoming increasingly common in our technology-driven world, where the expansion of the internet has created new dangers for an individual’s privacy. One that the law is now beginning to confront head-on. Justice Stinson’s recent decision in Jane Doe 464533 v. N.D., is one of the first to provide civil recourse for victims of cyberbullying.
During the separation of this relationship, the defendant, the young man, began asking the plaintiff, the young woman, to send him sexually explicit videos of herself. For a while, she refused. The defendant began to send her sexually explicit videos of himself and demanded she return the favour. The plaintiff ultimately recorded an intimate video of herself in November 2011, just after starting university, and reluctantly sent it to the defendant who assured her no one would ever see it.
A month later, the plaintiff learned that the video she sent the defendant had been posted to an internet pornography website the same day she sent it to the defendant. She also learned that the defendant was showing the video to mutual friends from high school. The video was removed from the website three weeks later, but the humiliation, devastation, and degradation had been significant and long-lasting.
The plaintiff commenced an action in the Superior Court of Justice requesting compensatory damages, punitive damages, and a permanent injunction to prevent the defendant from any such further acts in the future.
Justice Stinson ruled in favour of the plaintiff concluding, “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.”
Justice Stinson held that the plaintiff had three causes of action in tort; breach of confidence, intentional infliction of mental distress; and invasion of privacy.
In terms of breach of confidence, Justice Stinson states that the plaintiff’s decision to send the video was premised on the defendant’s assurance that he alone would view it. The defendant’s decision to share it publicly was a clear breach of the terms communicated to him. In this case, the plaintiff met all the requirements in the test established by courts for the tort of breach of confidence, namely
- that the information must have the necessary quality of confidence about it;
- that the information must have been imparted in circumstances importing an obligation of confidence; and,
- that there must be an unauthorized use of that information to the detriment of the party communicating it.
The third element of the tort is typically used in commercial settings, where the recipient has misused information for commercial advantage to the detriment of the other. Justice Stinson found that there was no difference between economic harm and psychological harm, as was experienced by the plaintiff in this case.
The plaintiff also succeeded in the tort of intentional infliction of mental distress. The defendant’s conduct was found to be flagrant and outrageous, calculated to produce harm, and there is a visible and provable injury to the plaintiff.
Lastly, the plaintiff was successful in making out the third tort, invasion of privacy. Justice Stinson examined the 2012 Court of Appeal of Ontario case of Jones v. Tsige, which recognized the existence of the tort of invasion of privacy. The Court of Appeal relied on an American legal article by William L. Prosser on privacy. In Prosser’s article he identifies four torts related to an individual’s privacy.
- Intrusion upon the plaintiff’s seclusion
- Public disclosure of embarrassing private facts
- Publicity which place the plaintiff in a false light in the public eye
- Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness
The Court of Appeal in the Jones case focused on Prosser’s “intrusion upon the plaintiff’s seclusion” tort, while Justice Stinson thought “public disclosure of embarrassing private facts” more closely related to the facts of this case. The essence of the cause of action is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In this case, the defendant posted on the internet a privately-shared and highly intimate video of the plaintiff. In doing so, he made public an aspect of the plaintiff’s private life. Any reasonable person would consider this highly offensive, and thus the cause of action was made out.
Justice Stinson awarded the plaintiff $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages.
This is a ground-breaking decision in the recognition of the privacy tort of public disclosure of embarrassing private facts, and for victims seeking civil damages. As Justice Stinson states in his decision, “in 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.” We look forward to more decisions like this one that address the increasing dangers of predators and bullies that the advancements in technology has created.