On January 21, 2016, Justice Stinson of Ontario’s Superior Court released his judgment in what is certain to become a significant decision in the development of privacy-related common-law torts. In Jane Doe 464533 v. N.D,1 the Court granted default judgment against the defendant for intentionally harming the plaintiff by posting an intimate video of her online. Damages were set at CDN $100,000, the maximum awardable under the Simplified Procedure rules.
For the legal profession, the most interesting aspect of the case was how the judge grappled with tailoring what in Canada amounts to an entirely new tort to deal with the unsavory facts.
The facts are reasonably straightforward and were uncontested (the defendant having failed to defend the action).
The parties had dated in high school. After high school, the parties had more or less broken up. The plaintiff was living in, and attending university in, a different city from the defendant. However, the parties remained on what appeared, to her at least, to be friendly terms; they still communicated (both online and in other ways). During this period, the defendant successfully goaded the plaintiff into making an intimate video of herself, and persuaded her to send the video to him. To overcome her reluctance, the defendant assured the plaintiff that no one else would ever see the video.
However, the plaintiff quickly learned that the defendant had posted the video on an Internet pornography site, under the title “college girl pleasures herself for ex boyfriends [sic] delight”. She further learned that the defendant had been showing the video to her friends from high school, and that the existence of the video had become widely known.
The defendant took steps to have the video removed from the site and contacted police; however, as both parties were by then adults, the police declined to act. Further, given its posting on the Internet, there was no way to ensure that the video had not been downloaded and saved elsewhere.
According to the uncontested facts, the consequences for the plaintiff arising from the online posting of the video were “significant and long-lasting”, causing harm to her emotional well-being, reputation and potential for future employment and personal relationships.
Developing The New Tort
Justice Stinson clearly saw this case as an example of an emerging phenomenon requiring development of the common law in response. As he noted, “[i]n recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent”; and “[s]ociety has been scrambling to catch up to this problem … “. He noted that the Criminal Code has been amended to include a new offence of “publication of an intimate image without consent”,2 and that Manitoba has, by statute, created a tort covering this action.3 However, these developments could not help the plaintiff; the Criminal Code was amended three years after the events in this case. Justice Stinson noted that the case before him therefore raised the legal issue of whether, in Ontario, there exists any common law remedy for the undoubted harm done to the plaintiff.
In concluding that a common-law remedy existed, the Court relied on both existing common-law torts, and developed an entirely new variant.
First, the Court held that the plaintiff had made out a cause of action for the existing tort of breach of confidence. There was no difficulty in concluding that the information was confidential and communicated on the express basis that it would remain confidential. The Court also noted that the third element of this established tort, that the information be used to the detriment of the party communicating it, is usually considered in the context of commercial circumstances and economic harm. However, the Court stated that there was “no rational basis” for differentiating between economic and psychological harms.
Second, the Court held that the plaintiff had made out a cause of action for the existing tort of intentional infliction of mental distress. The Court had no difficulty in concluding that the conduct of the defendant was “outrageous” and “calculated to produce harm”. However, once again, the Court noted that the third element of this test—“resulting in a visible and provable injury”—was made out based on psychological, not physical harms.
While the Court did not expressly state so, it seems that the Court was concerned that relying on the psychological harms in this case to fulfil the criteria for making out the established torts was a potentially unsafe basis for awarding judgment against the defendant. Accordingly, the Court went on to analyze the claim for the tort of “invasion of privacy”, which was recognized by the Court of Appeal for Ontario in Jones v. Tsige.4 In particular, the Court noted that the Court of Appeal in Jones v. Tsige relied on the catalogue of privacy torts in the authoritative article by William L. Prosser entitled “Privacy”.5 The Court of Appeal chose one of the four torts described in that catalogue, namely “intrusion upon seclusion”. In this case Justice Stinson chose to rely on another, entitled “public disclosure of embarrassing facts about the plaintiff”.
The nature of this tort was further described in the Restatement (Second) of Torts6 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 his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”
The Court essentially adopted this definition, with one modification, as shown in the underlining below:
“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized or the act of publication is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”
Unlike the established torts that were considered by the court, this new tort did not require the Court to equate psychological harm with economic or physical harm in order to support the cause of action, and therefore had obvious appeal in the circumstances of the case.
The Court awarded the maximum amount of damages available under Simplified Procedure rules: $100,000; $50,000 in general damages and $25,000 each for aggravated and punitive damages (as well as some injunctive relief). Notably, the Court expressly declined to follow the reasoning in Jones v. Tsige, in which a relatively modest award of $10,000 was considered appropriate for “invasion of privacy” claims. Rather, the Court analogized this case to one of sexual assault, and awarded damages on that basis. The significant finding here is that the nature of the wrongful act—uploading the video onto the Internet—was analogized to “multiple assaults”, as there is no way of knowing how many times the video was viewed and whether it was downloaded by others and remains in circulation.
“Revenge porn” lawsuits are already reasonably common in the United States: due to the common availability of jury trials, they have resulted in significant damages.7 Damages awarded in this case are high in comparison to findings in previous privacy related actions, and it remains to be seen whether subsequent decisions will find it appropriate to draw an analogy between breach of privacy and sexual assault in terms of quantum of harm.
However, the case undoubtedly signals a judicial willingness to craft remedies—including significant damages—for what it perceives as outrageous and malicious bullying on the Internet. No doubt the availability and impact of this new tort will be tested in future decisions. The scope of liability is also uncertain. It is an open question as to whether plaintiffs in future cases will seek redress against not only the immediate perpetrators of “revenge porn”, but also against those more likely to have “deep pockets”—namely, the owners of various websites on which this type of material may be posted. This particular plaintiff did not seek redress against the website owner, but future plaintiffs may.