The Ontario Superior Court of Justice in Doe v D (“Doe”) recently introduced the tort of “public disclosure of private facts”, expanding the scope of privacy protection in Canadian common law. In this case, the Plaintiff brought an action against the Defendant, her ex-boyfriend, for posting a private video of her onto a pornography website. Importantly, the Court found that the Plaintiff established a cause of action for the invasion of privacy by way of a new tort: the tort of public disclosure of private facts. The elements of the tort of public disclosure of private facts are 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 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.
The Plaintiff was awarded damages in the amount of $100,000, and was granted injunctive relief.
This case creates a novel tort that is especially likely to arise in the employment context. For instance, it is foreseeable that embarrassing facts relating to employers, clients, or colleagues, could be publicly disclosed by employees in a way that would meet the elements of this tort. Further, employers could be held vicariously liable for offensive disclosure by their employees. As such, Alberta employers may want to consider taking steps to mitigate against such privacy claims, such as:
- Preparing confidentiality agreements respecting sensitive information in the workplace;
- Limiting sensitive corporate information to authorized personnel only; and
- Developing and implementing “best use” practices for online platforms, particularly social media.