In the recent case of Doe 464533 v. N.D., 2016 ONSC 541 (per Justice D.G. Stinson), the Ontario Superior Court of Justice recognized a new privacy tort, called “public disclosure of embarrassing private facts”. This is yet another extension of common law privacy torts in Ontario, which follows and relies extensively on the Ontario Court of Appeal’s decision in Jones v. Tsige, 2012 ONCA 32 (which recognized a new privacy tort called “intrusion upon seclusion”).
While the ultimate result of this case and the goal of Stinson J. to ensure a remedy for a woman victimized through the internet is laudable, the further expansion of common law privacy torts was likely unnecessary in this case. As described below, the recognition of this new tort raises issues that are not addressed by the judgment, in particular, who can be liable as a publisher of private information and whether this tort could apply to mass privacy breaches by companies and other organizations.
In this case, the defendant, N.D., and the plaintiff, Ms. Doe, were former romantic partners. The plaintiff and defendant broke off their formal relationship, but continued to see each other romantically through the summer and fall of 2011.
In the fall of 2011, the plaintiff had moved away to attend university but stayed in contact with the defendant. During this period, the defendant convinced the plaintiff to record and send him a sexually explicit video of herself. Despite the defendant’s assurances that no one else would see the video, he posted the video to a pornography website the same day the plaintiff sent it to him. The defendant also showed the video directly to other individuals, including people with whom the plaintiff and defendant had both attended high school.
After the plaintiff discovered the video had been published online and shown to other individuals, the defendant had the video removed from the pornography website. Nevertheless, the damage had been done. There was no way to know how many times the video had been viewed, or downloaded and retained by visitors of the site. The plaintiff suffered serious and documented emotional and psychological harm.
The defendant refused to participate in the action brought against him, and the proceeding leading to this decision was a motion for default judgment (the defendant did not call any evidence to dispute the allegations or make any legal arguments).
Justice Stinson held that the defendant had committed three concurrent torts against the plaintiff by publishing the video online and showing it to other individuals:
- breach of confidence;
- intentional infliction of mental distress; and
- public disclosure of embarrassing private facts.
Justice Stinson had little trouble finding that the first two torts applied to this case and that the defendant was liable under both torts. However, in finding the defendant liable for breach of confidence, Stinson J. considered whether the harm element required for breach of confidence (detriment and damages ensuring from the communication of the confidential information) was satisfied by the facts of this case. Stinson J. held that there was “no rational basis to distinguish between economic harm and psychological, emotional and physical harm”. While this may be a sound conclusion on the face of the case law relied upon by Stinson J., he did not refer to any case law in which breach of confidence had been applied to a similar case or any case of psychological or physical harm.  Nor did he conduct any analysis of the history or traditional domain of this tort to determine if it adequately addressed the issue before him nor explain why it was necessary to create a new tort if breach of confidence compensated substantially the same injuries.
Having found that the defendant was liable for two concurrent torts already—which would both give rise to the same damages remedy—Stinson J. nevertheless went on to examine whether the defendant’s conduct was also an actionable invasion of privacy. His analysis consisted of, essentially, an adoption of the reasons in Jones v. Tsige. As in that case, Stinson J. referred to the list of four privacy torts catalogued by William L. Prosser in a 1960 article in the California Law Review. The first tort in that list was “intrusion upon seclusion”, which was imported into Ontario’s tort law in Jones v. Tsige. The second tort was the tort at issue in this case “public disclosure of embarrassing private facts about the plaintiff”.
Stinson J. concluded that the tort of public disclosure of private facts should be recognized as a cause of action in Ontario. He adopted the test for this tort that is described in the American Restatement (Second) of Torts (2010) (with one modification of his own, underlined below):
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 (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.
Justice Stinson concluded the defendant was also liable under the new tort of public disclosure of private facts.
Was a New Tort Necessary?
In light of Stinson J.’s findings that the defendant was already liable for two concurrent torts for the wrongs committed against the plaintiff (and assuming his analysis in that regard was correct), was it necessary or appropriate for the common law to be expanded to add a new privacy tort? For the reasons set out below, this decision does not appear to be consistent with the principle that the common law should be carefully and incrementally developed.
Justice Stinson, at para. 40 of his decision, quotes and adopts a comment in Jones v. Tsige in support of his decision to recognize another new privacy tort:
 Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. …
The passage quoted immediately above most certainly applies to the case before me.
However, read and considered in context, paragraph 69 of Jones v. Tsige should have militated against the recognition of this new tort – the plaintiff already had a remedy.
It is important to note that in Jones v. Tsige, the Superior Court of Justice dismissed Ms. Jones’ claim for invasion of privacy, finding no such tort existed in Ontario. The non-existence of that tort left Ms. Jones with no ability to make a claim directly against Ms. Tsige or to obtain damages from her. It is clear from the complete version of paragraph 69 of Jones v. Tsige that the Court of Appeal’s reference to “cry out for a remedy” was a reference to the possibility that the law would leave Ms. Jones with no remedy at all (emphasis added):
 Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.
In the case before Stinson J., it was clear that the plaintiff would be entitled to a remedy without the new tort, and that she would not be sent away without a legal remedy.
Stinson J. cited but did not consider the impact of a new Criminal Code offence brought into force in 2014 that prohibits “publication of an intimate image without consent”. That offence was not in force in 2011 and could not have been applied to charge the defendant in this case. But the question remained whether a new tort was necessary if the same conduct has been criminalized. It is possible that the criminal office was not enough to cover the field and make a civil remedy unnecessary (similar to the analysis of the Federal and Provincial protection of personal information legislation in Jones v. Tsige, at paras. 47-51, where the Court specifically noted those pieces of legislation would not provide any damages remedy to Ms. Jones). However, this is a factor that likely should have also been considered in deciding whether to expand the common law.
The scope and implications of the new tort of public disclosure of private facts
The facts of this case bear resemblance to recent high-profile instances where intimate photographs, videos, or other private information have been published on the internet. For example, the publication of sexually explicit photos of celebrities that were reportedly stolen from iCloud accounts, the case of Madam Justice Lori Douglas, and the Ashley Madison hacking scandal. These cases are just a small sampling of the new ways people can be victimized by privacy violations in the internet age.
There is no doubt the law must keep pace to ensure people are protected and have appropriate remedies for these and other new kinds of privacy violations (e.g. spying with drone aircrafts equipped with cameras). The difficult question is whether and when the common law is the best way to accomplish that goal. The decision in this case in particular seems to be an abrupt development of the common law that was not necessary and is likely to cause uncertainty.
When the courts considered whether to recognize the tort of intrusion upon seclusion in Jones v. Tsige, the judges had the benefit of detailed and considered arguments from counsel on either side of the issue. In this case, the motion was a default judgment motion with no one representing the defendant (and with no friend of the court appearing). In Jones v. Tsige, the Court of Appeal wrote three paragraphs setting out specific limits and factors that would ensure the new tort would not “open the floodgates” (at paras. 71-73). After recognizing the new tort in this case, Stinson J. did not provide any more detail on the elements of the tort or its limits. The following questions (just as examples) are therefore left open:
- Who is the party “who gives publicity to a matter”? Will this affect internet service providers, website hosting companies, or other corporations or persons who are involved in giving publicity to a matter? Similarly, can there be party liability for those involved in some indirect or less direct way with the publication of private information?
- What is the meaning of “publication” in this context? Is it the same as the definition used in the context of defamation claims?
- What is the precise definition of “a matter concerning the private life of another”? The comment section of the Restatement (Second) of Torts, quoted by Stinson J. at paragraph 42 gives some guidance on this question, but still leaves many questions open. Will this tort apply to gossip about someone’s marital life? What if such information is not entirely confidential but has been disclosed to one or two other individuals, does it remain a private matter to which this tort applies?
- Does this tort have an intention element, as the court found with respect to intrusion of seclusion in Jones v. Tsige? Without an intention element, does this tort apply to accidental publications? Could a corporation or organization be exposed to class action tort claims for an accidental dissemination of private medical or human resources information or other personal data (or to use a U.S. example, the publication of the fact that someone was a member of the Ashley Madison adultery website? Or, a Canadian example, the disclosure of the fact that a person was part of the medical marijuana program?). Is a party liable for publicizing something if they did not know it was a private matter?
None of these question arose in the case before Stinson J. because the defendant intentionally victimized the plaintiff by posting a highly personal video for the world to see on the internet, in circumstances where no reasonable person could believe it would not cause devastating harm to the plaintiff. It appears from the judgment that the broader implications of this new tort were not drawn to the Stinson J.’s attention or considered by him.
Some of these questions may be relatively easy to sort out in future cases by applying rules and concepts made in related areas of the law. However, the fact that this tort might have opened the gate to even a trickle (if not a wave) of new claims seeking to test its scope and application is the very reason the common law should not introduce new torts where it is unnecessary to do so, and with the benefit of full legal argument on either side of the issue.
On a related note, because the defendant did not take part in this case, it is unlikely we will see an appeal of this decision, in which some of the issues discussed above may be considered by the Court of Appeal. It may be that the unanswered questions will remain until this tort comes back before the courts.