Alberta Court Adds New Tort about Protecting Private Information.

AuthorSteingard, Jessica

The tort of Public Disclosure of Private Information protects someone from having private information disclosed about them publicly.

In September 2021, the Alberta Court of Queen's Bench released its decision in ES v Shillington. Noteworthy about this case is that the Court recognized a new tort: Public Disclosure of Private Facts.

The case of ES v Shillington is what we often call a "revenge porn" case. The parties create and share intimate images with each other during the relationship. When the relationship ends, one party shares these images online without the other person knowing or consenting. In this case, the relationship was also abusive. And the plaintiff successfully brought claims for assault, battery, sexual assault and intentional infliction of mental distress.

What is the tort of Public Disclosure of Private Facts?

This tort protects someone from having private information disclosed (shared) about them publicly. To prove this tort, a plaintiff must show:

  1. the defendant publicized an aspect of the plaintiff's private life, and

  2. the plaintiff did not consent to the publication, and

  3. the published material or its publication would be highly offensive to a reasonable person in the position of the plaintiff, and

  4. the publication was not of legitimate concern to the public.

If there is an issue as to whether the information is private, the Court suggests the following question as a starting point (taken from other case law): What would a reasonable person feel if they were placed in the same position as the claimant faced with the same publicity?

What are the remedies for someone whose private information has been shared publicly? If the plaintiff is successful, the court can order an injunction demanding the defendant remove all published information. The court can also award money damages to the plaintiff for pain and suffering, aggravated damages (where the behaviour is malicious), punitive damages (to punish the defendant), out-of-pocket expenses and more, depending on the facts of the case.

In the case of ES v Shillington, the court awarded damages to the plaintiff. I should note that these damages covered two other torts as well (breach of confidence and mental distress). The damages for all three were:

* general damages for pain and suffering of $80,000

* aggravated damages of $50,000

* punitive damages of $50,000

* special damages for out-of-pocket expenses

These are significant damages! Which signifies how serious...

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