Until recently, a person’s ability to sue for privacy concerns in Canada was limited to traditional torts such as libel, negligent or intentional infliction of mental distress, abuse of trust or harassment. This has not been satisfactory as traditional crimes have developed without reference to the abundance of modern privacy concerns in the age of the internet and social media. The elements of these crimes and the remedies available do not respond very well to modern privacy concerns. While privacy breaches have traditionally been personal, they can potentially be applied to work environments, and employers could face risks if their employees did wrongdoing.
Since 1960, American law has recognized four common law offenses specific to privacy, initially summarized by William Prosser in what are called the “Four Prossers”1:
- Intrusion during isolation;
- Public disclosure of private facts;
- Advertising which puts the applicant in a false light in the eyes of the public; and
- Appropriation of the name or image of the plaintiff for the benefit of the defendant.
These crimes have developed to specifically address modern privacy concerns without the limitations of traditional crimes.
It is only recently that some of the four Prossers have been recognized in a few provinces, to the point where provincial legislatures have enacted legal torts to address these issues. In Alberta, only one law is in place, and it deals with public disclosure of public facts only in a limited context: the
Act respecting the protection of victims of non-consensual dissemination of intimate images2. At the federal level, it is a crime to publish, distribute, transmit, sell, make available or advertise an intimate image of a person without their consent.3, however, it does not provide for a civil remedy.
Public disclosure of private facts
Ontario courts, in particular, have recognized the tort of public disclosure of private facts (“PDPF”), generally listing the following:
- Publication by the defendant of a case concerning the private life of the plaintiff;
- The advertisement would be very offensive to a reasonable person; and
- Posting is not a legitimate public concern.
Many Canadian cases involving PDPF involve “revenge pornography” scenarios, where a defendant publicly posts intimate images of the plaintiff (obtained or generated with the plaintiff’s consent during a relationship) on the Internet.4. This scenario does not begin to cover the full scope of this offense, and only a few other PDPF scenarios have been recognized.5. Some of these cases have limited precedent value as they arise in the context of default judgments. Alberta case refused to dismiss PDPF case in interlocutory claim where defendant did not contest existence of cause of action6.
PDPF recognized in Alberta
The Alberta Court of Queen’s Bench recently joined the 21st century when it recognized the PDPF as a new common law tort in S. (E.) V. Shillington. Plaintiff successfully sued the male defendant for sexual assault and battery, intentional infliction of nervous shock, breach of trust and PDPF. She received substantial damages and a permanent injunction prohibiting the defendant from reposting private images and requiring them to remove previously published images. The defendant was found in default, and the case proceeded with considerable evidence and a thorough analysis of the tort.
During an intimate relationship between 2005 and 2016, the complainant shared explicit images of herself and portrayed her engaged in sexual activity with the accused and in various states of undressing. The photos were taken as a personal gift for the accused due to their separation while deployed on military duty. It was understood that he would not distribute these images under any circumstances. In 2016, the defendant revealed to the plaintiff that he had shared some of the photos since 2006. The plaintiff discovered numerous images on the defendant’s social media and porn sites, and some were still online until 2021.
The complainant claimed to have suffered “nervous shock, psychological and emotional suffering, depression, anxiety, sleep disturbances, embarrassment, humiliation and other effects on her well-being” , as well as post-traumatic stress disorder and public humiliation. At one point, a neighbor spoke to her in a sexual way after recognizing her in some of the posts online. As part of her affidavit evidence, the complainant’s psychologist described “the complainant’s anxiety, her inability to emotionally engage in a romantic relationship and other significant persistent symptoms that negatively affected [her]life “and stated that” she was still suffering from many negative effects of her past experiences with the defendant “7. This was in addition to the physical and psychological injuries caused by the sexual assault.
In addition to finding the defendant liable for breach of trust, the court found him liable in the new PDPF tort. The Court noted that “the other existing torts do not provide redress for the particular conduct complained of” because they require a claimant to prove that the information was confidential and disclosed on a confidential basis. and that it had been misused by the defendant. Madam Justice Inglis enumerated four elements of this tort in Alberta:
68 Therefore, in Alberta, in order to establish liability for the tort of public disclosure of private facts, the plaintiff must prove that:
- the defendant has made public an aspect of the plaintiff’s private life;
- the applicant has not consented to publication;
- the matter made public or its publication would be very offensive to a reasonable person in the position of the plaintiff; and,
- the publication did not legitimately concern the public.
69 The three cases – Jones, Jane doe # 1, and Jane doe # 2 – recognize the privacy interests inherent in financial and sexual matters. Relationships and health records also fall under the category of “privacy” issues. If the published information does not fit into one of these groups, the Campbell test (at paragraphs 94-96) is an appropriate starting point to determine whether the information in question is private or not: “How would a person feel?” reasonable person if they were placed in the same situation as the applicant in the face of the same publicity? “: at para 99.
In that case, the Court concluded that the liability of the PDPF was “straightforward”:
70 In Jane Doe # 2, the court made detailed findings of fact about the defendant’s conduct, and it took only a brief review in court to hold the defendant liable for this tort. The court noted at paragraphs 100-101:
Jane has proven all the elements of the offense. By posting the sexually explicit video of her, Nicholas has publicly revealed an aspect of her private life. She did not consent to it. A reasonable person would consider the video’s posting to be very offensive as the video showed Jane’s face and body and allowed strangers to see her engaging in sexual activity. The title given to the ad was also degrading and racist. Nothing in the video gave the public a legitimate interest in its publication.
I therefore find that Nicholas is responsible to Jane for her public disclosure of her personal information.
72 In the case before this Court, the application of tort principles is equally straightforward. By uploading the explicitly sexual images of the plaintiff to accessible websites, the defendant made public an aspect of her privacy; the plaintiff did not consent to this action; the publication of the images is highly offensive to a reasonable person in the position of the applicant; and, there is no legitimate public concern that justified the publication.
The events in this case occurred before the death of the law protecting victims from the non-consensual dissemination of intimate images8, which created the tort of non-consensual distribution of intimate images. Therefore, the Court did not have to rule on whether the creation of the tort had replaced a common law cause of action for PDPF. However, the judge noted that the tort was limited in scope and did not cover all the types of conduct that the common law tort would encompass:
42 In addition, the Act only protects the dissemination of intimate images, and the term “intimate image” is defined narrowly, limiting the availability of this recourse to images defined as when the victim is naked, exposing his or her genital areas or or her breasts, or is engaged in sexual activity: Act, section 1 (b). While this definition would apply to the plaintiff in this case, the proposed tort could protect information not covered by this law even if the distribution took place after its entry into force (for example, the facts in Racki [v
Racki, 2021 NSSC 46], above). The applicant rightly points out that the law does not protect the private sharing of such images, which is also a potential gap in the legislative framework.
The Court awarded the plaintiff $ 155,000 in damages for the PDPF, intentional infliction of nervous shock and breach of trust ($ 80,000 in general damages, $ 25,000 for aggravated damages and $ 50,000 for damages. punitive). This was in addition to the $ 305,000 for sexual assault and assault and battery.
Take away food
The recognition of the tort of public disclosure of private facts in Alberta marks the court’s willingness to provide redress for breaches of privacy that may have historically been overlooked. This opens the door to other crimes such as trespassing in solitary confinement which have been recognized in other jurisdictions but which have not been fully addressed in this province.
While the offense of public disclosure of private facts often arises in the context of personal affairs, organizations should recognize the potential application of privacy breaches in work environments and the potential risks employers face by taking action. “rogue” employees committing wrongdoing.
1 William L. Prosser, “Confidentiality” (1960)
48 cal. L. Rev. 383; Reprocessing (second) of misdemeanors (2010)
2 SA 2017 c. P-26.9
2 Criminal Code, RSC v. C-46, s. 162.1
4 Jane Doe 464533 c. D. (N.), 2016 ONSC 541;
Jane Doe 72511 c. Morgan, 2018 ONSC 6697, by Gomery, J .;
Halley v. McCann, 2016 CanLII 58945 (SCSM Ont.)
5 For example, see Yenovkian v. Gullian, 2019 ONSC 727
6 LDS c. SCA, 2020 ABQB 586
7 At ¶ 16 At ¶ 43
8 SA 2017 c. P-26.9
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.