Privacy law is responding to disturbing social trends on the internet. Last week, in Jane Doe 464533 v. N.D. (“Doe“), the Ontario Superior Court recognized a new privacy tort–“public disclosure of embarrassing private facts”.
In this unfortunate case, an unnamed woman in her late teens succumbed to the pressures of an ex-boyfriend’s repeated requests to share a sexually explicit video of herself. Despite assurances that he would not share the video with anyone, the ex-boyfriend uploaded it to a pornographic website, and showed it to mutual friends.
The unnamed woman was understandably humiliated and devastated. After the police refused to pursue the matter, she decided to take civil action. She claimed damages for, among other things, a tortious breach of privacy.
Thanks to the unnamed woman, and to the Honourable Justice Stinson, new recourse is available when private images not intended for public consumption are distributed on the internet. It is now clearly possible to sue an individual who posts your private images or information online. To succeed, you will have to prove that “the matter publicized or the act of the publication” is “highly offensive to a reasonable person” and is not “of legitimate concern to the public”.
But this is not the first time Ontario courts have recognized a new privacy tort. For example, in the seventies, Ontario courts recognized the tort of “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness” (Athans v. Canadian Adventure Camps). Furthermore, in 2012, the Ontario Court of Appeal recognized the tort of “intrusion upon seclusion” (Jones v. Tsige).
So…What can employers learn from past experience? There are at least four important considerations:
- Employers Must Protect Information – It is now more important than ever to ensure that employee information is protected and only disclosed, with consent, on a need-to-know basis. For example, human resources files and workplace computer systems often contain very sensitive, confidential information about employees. This information must be kept secure.
- Employers Will be Sued – Employers will be named as co-defendants in cases where their employees publicly disclose embarrassing images of, or information about, coworkers. This is a certainty because employers may be held vicariously liable for acts committed by their employees in the course of their employment, and because employers have deeper pockets.
- Damages are Higher – This case suggests damages for public disclosure of embarrassing facts may be much higher than damages for intrusion upon seclusion. InDoe, for example, the court awarded $100,000.** Only time will tell, but the damages contemplated in this case are clearly much higher than the $20,000 “cap” that was established by the Ontario Court of Appeal under the tort of intrusion upon seclusion.
- Court of Appeal has Acknowledged this Tort – It is important to note that the Ontario Court of Appeal previously made reference to the tort of “public disclosure of embarrassing facts” (in Jones v. Tsige) but did not go into detail as the facts did not support such a claim in that case. The fact that an appellate court has already made reference to this tort suggests it is probably here to stay (though it will take many years to sort out the legal nuances).
Employers who have not already done so should take notice. Privacy policies and practices should be established and reviewed to ensure coworkers are charged with the responsibility of maintaining respect for each other’s privacy–both inside and outside the workplace. In short, employers must take all reasonable steps to ensure its employees’ private stuff is not publically disclosed.