The Ontario Superior Court in the recent decision of Doe 464533 v N.D., 2016 ONSC 541 (“Doe”), introduced a privacy tort (“public disclosure of private facts”) which had not previously been recognized in Ontario jurisprudence. While this decision did not occur in an employment context, it is easy to imagine scenarios in which it could be applicable.
Doe involved a Plaintiff bringing an action against her ex-boyfriend for posting a private video of her on a pornographic website, without her consent or knowledge. Justice Stinson held that the Plaintiff had 3 valid causes of action- breach of confidence, intentional infliction of mental distress, and invasion of privacy, and that all 3 torts were made out. The case was brought under Simplified Procedure, limiting damages to $100,000 plus costs, but it appears likely the Court would otherwise have made a more significant award against the unsympathetic Defendant.
Justice Stinson also recognized that monetary damages could not adequately remedy the harm done to the Plaintiff through the Defendant’s conduct, nor could they ensure that she would be subject to no further harm. As a result, the Court took the step of awarding significant injunctive relief as well. The court ordered the Defendant to destroy any remaining copies of the video, prohibited the Defendant from sharing any other recordings of the Plaintiff in his possession, and permanently barred the Defendant from having any communication with the Plaintiff or members of her immediate family.
Justice Stinson based his analysis of the privacy breach upon a tort which was discussed in William Prosser’s American text, Restatement (Second) of Torts (2010). He adopted much of Prosser’s analysis and only slightly modified it in describing the elements of the tort:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication
- would be highly offensive to a reasonable person, and
- is not of legitimate concern to the public (para. 46).
Breach of privacy torts were introduced in Ontario by the Court of Appeal’s seminal decision in Jones v Tsige, 2012 ONCA 32 (“Tsige”), where the Court recognized the tort of “intrusion upon seclusion”. That decision emerged from an employment context and its impact upon employers immediately became a consistent topic of discussion. Tsige involved a woman using her credentials as a bank employee to repeatedly access the bank account of her boyfriend’s ex-wife. The privacy concern therefore was that the defendant intruded upon the plaintiff’s privacy (i.e. she sought out private information without legal justification and caused the plaintiff harm thereby).
In Doe, on the other hand, there was no intrusion in the obtaining of the private information. The recording was provided to the Defendant willingly by the Plaintiff. The issue was that this information was published, that the Defendant reasonably could have been expected to know that this publication would be highly offensive to the Plaintiff, and that there was no public concern which justified the publication.
While Doe was not an employment law decision, it is easy to conceive of similar scenarios which would involve the workplace. For example:
- An employer might disclose information to its employees regarding colleagues or clients that arguably could be considered embarrassing and/or private material. This disclosure could occur in the normal course of business. However, if the disclosure were sufficiently widespread that it could be considered “giving publicity” to the information (e.g. company-wide disclosure by a large employer), and if the information could be considered “highly offensive to a reasonable person”, this disclosure might make out the elements of the tort and the employer could be held liable as a result of their “publication” of the private material.
- Even without intentional disclosure by the employer, an employee could in the course of their employment gain possession of embarrassing and/or private information about colleagues, clients, or other businesses. That employee could choose, for whatever reason, to publish this information via social media or similar platforms. Again, if the information were held to be “highly offensive to a reasonable person”, the elements of the tort could be made out. In this case, however, the employer could arguably be found vicariously liable for the employee’s tortious conduct.
In addition to questions of liability, the decision in Doe potentially raises concerns related to remedy. Unlike Tsige, which held that non-pecuniary damages should generally be modest in privacy cases, Justice Stinson in Doe appears to reject any such limitations. Scenarios which result in serious reputational harm or potential impact upon the victim’s mental health and/or career prospects could very well attract damages well beyond the amount awarded inDoe. This seems particularly likely if the offending conduct can be analogized to sexual assault, as in Doe.
The willingness by Justice Stinson to award injunctive relief in Doe should also be noted. If an employer were found liable for this tort, vicariously or otherwise, the Court may be inclined to order non-monetary remedies that could impact an employer’s business methods and ability to communicate with other parties. Such remedies, while perhaps unlikely, could have far-reaching consequences for an employer.
In the face of such possible consequences, employers should be diligent with respect to their handling of any sensitive information. Disclosure of any such information to other parties (including employees) should be limited as much as possible. Employers should also, where possible, have confidentiality agreements in place for any parties who may have access to sensitive information in the employer’s control. Employers should also review any internal policies relating to access to and/or use of sensitive information (for example, policies relating to internal and external communications, confidentiality, and employee use of social media).