In ES v. Shillington (2021 ABQB 639) Madam Justice Inglis of the Alberta Court of Queen's Bench recognized a new tort in Alberta of "public disclosure of private facts," following the Ontario Superior Court's lead in Jane Doe 72511 v. Morgan (2018 ONSC 6607).
In ES, the Plaintiff and the Defendant were in a long-term romantic relationship and had two children together. The Defendant physically and sexually abused the Plaintiff, and she successfully left the relationship in New Brunswick and escaped to Alberta in 2016. During the relationship, the Plaintiff shared private photographs of herself in "various states of undress and engaging in sexual activity" (para. 10). The images were a private gift to the Defendant, a member of the Canadian Armed Forces, for when the parties were separated by his military deployment. Near the end of the relationship, the Defendant admitted to the Plaintiff that he had posted her images online. The Plaintiff learned that the Defendant had published images as far back as 2006, and as recently as late 2018. As of 2021, the Plaintiff was still able to find some of her private images online. The Plaintiff was identifiable in some of the images, and a neighbour, having seen the images, made distressing sexual comments to her.
The Plaintiff brought a claim against the Defendant for a number of torts, including for assault, sexual assault, battery, intentional infliction of mental distress, and sought recognition of the tort of public disclosure of private facts in Alberta. The Defendant did not defend the claim, and was noted in default in September 2019. The Court directed a special chambers application on a number of matters, including the alleged new cause of action.
New torts generally
The Court cited the Supreme Court of Canada in Nevsun Resources Ltd. v. Araya (2020 SCC 5, para. 237) for guidance on when a new tort may be recognized (by setting out what will defeat such recognition):
- The courts will not recognize a new tort where there are adequate alternative remedies.
- The courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another.
- The courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial.
Public disclosure of private facts
The Court in ES held that the facts of the case met each of the Supreme Court's criteria for recognizing a new tort.
There are no other torts, independent statutory schemes, or judicial review processes that would address the wrong suffered by the Plaintiff. Torts such as breach of confidence and intentional infliction of mental distress placed too high a burden of proof on a person in the Plaintiff's position. For example, the tort of breach of confidence requires proof that the shared images were confidential and communicated in confidence. The Court held that the related burden "creates an unnecessary barrier to a remedy" (para. 44). Likewise, given that a Plaintiff alleging intentional infliction of mental distress must show that the conduct at issue was calculated to cause harm, this tort places the plaintiff in the position of establishing "the subjective intent of the Defendant", and proof of a "provable" illness may require proof of harm beyond anxiety, stress and humiliation.
In 2017, Alberta introduced the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9. The Plaintiff was unable to retrospectively rely on that statute. Further, the Court noted that the statute "only protects distribution of intimate images, and the term intimate image is narrowly defined, limiting the availability of this remedy" (para. 42). The Court agreed with the Plaintiff's submission that the statute also does not protect privately sharing sexual images (such that, for example, publication by the Defendant to a group of friends rather than on the internet would not be captured).
Response to a wrongdoing
The Court found that the Defendants actions were deliberate wrongdoing with "significant foreseeable harm" as a consequence.
Appropriate for judicial adjudication
The Court succinctly noted that the "[r]ight to privacy is recognized internationally and within Canada; it is enshrined in the Charter, the Criminal Code, statute, and tort law." (para. 55).
The Court recognized that so-called "revenge porn" requires an effective remedy for the growing number of victims, and deter behaviour that would otherwise attract few legal consequences for the aggressor. While not specifically referenced in the decision, the act of posting private sexual images online may be considered as a form of intimate partner violence entitling a claimant to compensation pursuant to the tort of public disclosure of private information even though such conduct is likely not captured by torts like assault and battery.
Elements of the tort
The elements of the new tort of public disclosure of private facts in Alberta require a plaintiff to prove that:
- 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 in the position of the plaintiff; and
- The publication was not of legitimate concern to the public (para. 68).
The Court ordered a permanent and mandatory injunction against the Defendant, requiring him to make best efforts to return all images of the Plaintiff in his possession, and remove any images he posted of her. He was also prohibited from sharing any private images of the Plaintiff publicly in the future (para. 81).
The Court further awarded the Plaintiff general damages of $80,000, punitive damages of $50,000, and aggravated damages of $25,000.
New torts for the Internet age
In ES, the Court cited from a 1960 article by William L. Prosser, "Privacy" (1060), 48 Cal LR 383 "which shows significant prescience." Prosser set out a catalogue of four potential torts in the privacy sphere which seem almost unimaginably forward-thinking and predictive of life in the 21st century:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
The Ontario Court of Appeal recognized this tort in Jones v. Tsige (2012 ONCA 32). In Jones, the Defendant was in a common-law relationship with the Plaintiff's ex-spouse. The Defendant, a bank employee, used her workplace computer to access the Plaintiff's personal bank account at least 174 times. She did not publish, distribute, or use the information. Nonetheless, the Court held that the Plaintiff's right to privacy over her financial information was deserving of protection and recognized the new tort of intrusion upon seclusion.
2. Public disclosure of embarrassing private facts about the plaintiff.
This is precisely what the Court in ES was faced with, and agreed should be a tort in Alberta. The Ontario case which preceded ES was also a "revenge porn" case in which the Defendant posted sexually explicit images of the Plaintiff on a pornographic website without her knowledge and consent.
3. Publicity which places the plaintiff in a false light in the public eye.
This tort was recognized by the Ontario High Court in 1977 in Athans v. Canadian Adventure Camps Ltd. ( OJ No 2417). In that case, a prominent water-skier was depicted in a stylized line-drawing of a recognizable photograph of him for the purposes of advertising a summer adventure camp without his consent. The Plaintiff used his likeness commercially, and although the Defendants did not intend to cause harm, they were not entitled to act as they did and the Court recognized the tort of publicity which places the plaintiff in a false light in the public eye in those circumstances.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
Although this potential tort may also have applied to the Athans case, in the modern age it is more likely to arise in an online context. For example, the practice of online "catfishing", typically on dating apps and matchmaking websites may attract this potential tort in the future. "Catfishing" is the use of someone else's image or information to create an online identity (such as a false and deceptive dating app profile). The circumstances in which catfishing could become actionable are easy to imagine, and the distress to the person whose identity is misappropriated apparent.
Just as there is now a remedy available in Ontario for the breach of personal privacy of one individual by another following Jones v. Tsige, in Alberta a Plaintiff subject to non-consensual disclosure of his or her private intimate images may obtain similar relief.