Yet Another Privacy Tort Comes to Ontario

• Author: Omar Ha-Redeye
• Date: January 31, 2016

When the tort of intrusion upon seclusion was introduced in 2012, it was of significant importance. A civil remedy for the growing area of privacy rights was desperately needed, but it was uncertain how extensive this tort would be used.

I’ve spoken about this tort at law schools, to industry, and even published a journal article on it. But the area of privacy law is about to become even more exciting with the introduction of yet another privacy tort this week in Jane Doe 464533 v. ND [there is no CanLii link on this yet].

The parties in this case were high school sweethearts. Things turned slightly less sweet once the plaintiff moved away for university, but they remained in touch. As teenagers tend to do these days, they communicated via text message and the Internet. The defendant sent the plaintiff explicit photos of himself, and eventually, convinced her to do the same for him, even though they were no longer in a relationship. He provided assurances that nobody else would see the explicit video.

Such assurances from a jilted teen proved dubious. Within one month he had posted this video to an Internet forum with the title, “college girl pleasures herself for ex boyfriends (sic) delight” [para 8]. He showed the video to several of his friends from their hometown.

Needless to say the plaintiff was “devastated, humiliated and distraught.” She sleeplessly stayed in bed, couldn’t focus on school and deferred her Fall exams. She remained in her bed, not even showering. She sobbed endlessly, and “felt like a very cold person and felt like everything in my life and all of my beliefs and morals had been stolen from me” [para 12].

The video was only removed after 3 weeks once the defendant’s mother was contacted. I’m certain she wasn’t very pleased either. The video may have been downloaded though, and the plaintiff remained deeply concerned about its impact on her employment, her career, and her future relationships.

Justice Stinson, who presided over these proceedings, emphasized the growing concern over cyberbullying, especially with intimate images. He noted the amendments to the Criminal Code in 2014. In this case, no criminal charges were placed given the offender’s age. Although statutory liability has been created around this in Manitoba, no common law remedy exists elsewhere in Canada.

Justice Stinson drew upon existing areas of tort liability, including breach of confidence, intentional infliction of mental distress, and invasion of privacy. On this...